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DUTIES 


OF 


SHERIFFS  AND  CONSTABLES, 


AS   DEFINED   BY   THE    LAWS, 

AXD    INTERPRETED    B.    THE   SUPREME    COURT, 

OF    THE   STATE    OF    CALIFORNIA. 


WITH 


Practical  Forms  for  Official  use.  and  the  Fee  Bills  of 
each  of  the  Counties  of  the  State. 


W.    S.    HARLOW. 


SAN  FRANCISCO  • 
SUMNER    WHITNEY    &    CO. 

iS8'. 


Copyright  1884, 
By  W.    S.     HARLOW^. 


PREFACE. 


In  the  preparation  of  this  volume  the  author  has 
aimed  to  furnish,  as  a  guide  to  Sheriffs  and  Consta- 
bles, the  laws  of  the  State  of  California  relating-  to 
their  official  duties,  with  such  interpretations  of  those 
laws  as  have  been  made  by  the  Supreme  Court  of 
California,  tog^ether  with  such  observations  and  suor- 
ofestions  concerninof  the  duties  of  officers  as  the  writer 

o  o 

has  stored  up  in  an  experience  of  nearly  ten  years  of 
uninterrupted  service  in  the  Sheriff's  Office  in  this 
State. 


671421 


TABLE    OF   CONTENTS. 


Chapter  I. — Of  the  Summons. 

Plaintiff's  Right  to  Prompt  Service. — The  Receipt  of  the  Sum- 
mons.— The  Complaint. — Clerk's  Certificate  on  Summons. 
— By  whom  may  be  Served. — How  Served  on  Minors. — 
Service  on  Corporations. — Service  on  Vessels. — Avoiding 
Service. — Officer  to  Ascertain  True  Name  of  Defendant. — 
Insufficient  Evidence  of  Service. — Informal  yet  Sufficient 
Service. — Return  Prhna  Facie  Evidence  of  Fact  Stated 
Therein. — Sufficient  Proof  of  Service. — Return  of  Deputy 
not  made  in  Name  of  Sheriff. — Return  When  not  Served 
by  officer. — Sheriff's  Return  not  Traversable. — Inexcusable 
Delay  in  Serving  Summons. — When  Summons  should  be 
Returned. — Re-Delivery  of  Original  after  Filing. — Erasures 
in  Return  §^  1-2 1. 

Chapter  II. — Arrest  and  Bail. 

Imprisonment  for  Debt. — Arrest  for  Fraud. — The  Order  of 
Arrest. — Temporary  Exemptions  from  arrest. — Void  Order 
of  Arrest. — Sheriff's  Expenses. — When  Defendant  may  be 
Discharged. — Surrender  of  Defendant. — Liability  of  Sheriff 
and  Sureties. — Exception  to  Sureties. — ^Justification  of  Sure- 
ties.— Deposit  of  Bail  Money. — Sheriff  liable  for  Escape. — 
Discharge  Final §i^  22-36. 

Chapter  III. — Claim  and  Delivery. 

Affidavit  and  Order  to  Sheriff. — Taking  the  Property. — Who 
Cannot    Maintain    Replevin. — What    is    not    a    Particular 


6  CONTENTS. 

Description  of  Property. — Care  of  Property  in  Replevin. — 
Justification  and  Retaking  property. — Officer  Responsible 
until  Sureties  Justify. — Notice  of  Justification. — How  Prop- 
erty Taken  when  Concealed. — Claim  by  Third  Person. — 
Sheriff  liable  for  Taking  Property  of  Stranger. — Indemnity 
Bonds. — Correction  of  Valuation  of  Property. — Property 
Lost  Through  Act  of  God. — Attachment  Lien  in  Replevin 
§§37-51. 

Chapter  IV. — Injunction. 

May  be  Served  on  any  day — How  Served^— When  served  on 
Sherift" ^§  52-54- 

Chapter  V, — Habeas  Corpus. 

How  Served — The  Return — Warrant  of  Arrest — When  Writ 
may  be  Served — Must  be  Served  without  Fees §^  55-59- 

Chapter  VI. — Attachment  on  Real  Estate. 

The  Object  of  the  Writ — Void  Writs — Effect  of  New  Summons 
— Where  Debt  is  Secured  by  Mortgage — May  be  Levied  be- 
fore Service  of  Summons — Void  for  Want  of  Proper  Under- 
taking— Liability  of  Officer  on  Void  Judgment — Liability  of 
Party  Enforcing  Void  Judgment — Irregularity  in  Issuance 
— Attachment  when  Debt  not  Due — On  Contract  not  Due  in 
this  State — Right  to  Intervene — What  the  Writ  must  State 
— Sufficiency  of  Sureties — Instructions  to  Sheriff — Directions 
must  be  in  Writing — How  Property  must  be  Attached — 
How  to  Attach  Fixtures  on  Realty — The  Service  on  Occu- 
pant— The  vService  on  Third  Party — Posting  Copy  on  Real 
Estate — What  Constitutes  Complete  Attachment — When 
Lien  of  Levy  takes  Effect — How  Attachment  may  be  Re- 
leased— Returns    of  Attachment §§  60-84. 

Chapter  VII. — Attach>H':nt  on  Personal  Property. 

Receiving  the  Writ — Rcsi)onsibility  in  Service  of  Proces.s — Lia- 
bility from  Delay — Undertaking  for  Release  removes  Sher- 
iff's Liability — Form  of  Undertaking — Original  Writ  kept 
in  Office — Authority  of  Ofiicer  in  Levying — What  may  be 
Levied  Upon — Void  Levy — Void  Levy  on  Insolvent's  Pro- 


CONTENTS.  7 

pcrty — How  Insolvency  Proceedings  affect  Attachment— 
What  Constitutes  a  VaUd  Levy — Property  must  be  taken 
into  Custody — Attached  Property  in  Custody — Property 
must  be  within  View  of  Officer — Attachment  Lien  Depend- 
ent on  Possession — Prior  Liens  Must  be  Satisfied — Waiver 
of  Warehouseman's  Lien — Sales  Prohibited  Under  Attach- 
ment— Keeper's  Fees — Removal  of  Attached  Property — Re- 
taking Goods  from  Officer — Penalty  for  Obstructing  Officer 
— Excessive  Levy — Surplus  Property  Returned  to  Defend- 
ant— Sheriff  Liable  for  Loss  by  Negligence — Authority  to 
Conduct  Business  in  Attachment — Authority  of  Deputy — 
Partnership  Property — Attachment  of  Stocks — Garnishment 
of  Stocks — Property  not  Capable  of  Manual  Delivery — 
Attachable  Interest  in  Leased  Property — Attaching 
'  Goods  in  hands  of  Third  Parties — Pledge  of  Goods — 
Rights  of  Pledge — The  Garnishment — Notice  to  Garnishee 
— Examination  of  Garnishee — Garnishment  of  Sum  Due  for 
Homestead — Liability  of  Garnishee — When  Garnishment 
not  a  Lien — Sale  of  Perishable  Property — Sheriff's  Receipt 
a  Discharge — Sales  by  Order  of  Court — Fraudulent  Trans- 
fers— Officer's  Right  to  Indemnity — Trial  by  Sheriff's  Jury 
— Sheriff  as  Agent — Verdict  of  Sheriff's  Jury  no  Protection 
to  Officer — Summoning  Sheriff's  Jury — ^Joint  Trespassers — 
Property  Released  by  Undertaking — ^Judgment  for  Defend- 
ant Dissolves  Attachment — Death  of  Defendant  Destroys 
Attachment  Lien — Release  of  Personal  Property — Return 
of  Writ — What  the  Return  Should  Contain i;;^?  S5-141. 

Chapter  VIII. — Execution  : — Levy  and  Sale  of  Per- 
sonal Property. 

The  Writ — Regularity  of  Writ  not  Protection  to  Sheriff— Void 
and  Voidable  Writs — Void  as  to  Defendants  not  Served 
with  Summons — Writ  Cannot  be  Received  on  Sunday — ^Jus- 
tice's Court  Executions — How  to  Determine  what  is  Ex- 
empt from  Execution — Liberal  Construction  of  Exemption 
Law — What  is  "Necessary  Household  Furniture" — Ex- 
empt Property  may  be  Levied  on  for  Purchase  Price — Ex- 
emption for  Farmers — Exemption  for  Maimed  Persons — 
When  a  House  is  Personal  Property — Debtor  Limited  to 
Choice  in  Exemi)tions — Exemptions  for  Mechanic,  Notary, 


CONTENTS. 

and  Physician — Exemption  for  Miners — Exemption  for 
Laborer — What  is  a  Teamster — What  is  not  a  Teamster — 
What  is  a  Laborer — Teamster  or  Laborer — Earnings  of 
Judgment  Debtor — Exemption  a  Personal  Right — Debtor 
must  Claim  within  Reasonable  Time — Unreasonable  delay- 
in  Claiming  Exemption — Insufficient  Claim — What  Consti- 
tutes a  Reasonable  Time — A  Stallion  not  Exempt — Grain 
on  Homestead  Land — Claim  before  Sale — Sheriff  cannot 
Sell  when  Stay  is  Ordered — Interest  under  Deed  of  Trust — 
Mining  Claim  Liable  to  Execution — Property  in  Custody  of 
Law — Money  Deposit  to  Release  Attachment — Personal 
Property  Mortgaged — Attachment  of  Growing  Crops — 
Other  Chattel  Mortgages — How  Growing  Crops  are  At- 
tached— Property  Held  as  Security — Sale  of  a  Road — Pat- 
ent Right  Attachable — Property  of  Inhabitants  of  a  County 
— Interest  of  Purchaser  at  Judicial  Sale — Fixtures— When 
Fixtures  become  Personal  Property — The  Law  of  Exempt- 
ions— Within  what  time  Execution  may  Issue — Execution 
when  Judgment  not  Entered — Power  of  a  Justice  over  his 
Judgments — Enjoining  Justices' Judgments — ^Judgment  After 
Filing  Homestead — Void  Judgment  and  Levy — Staying 
Execution — When  Voidable — When  Amendable — Sales 
when  Valid  and  when  Void — Not  Open  to  Collateral  Attack 
— Executions  not  Void — Indemnity  Bonds  and  Sheriff's 
Jury — Time  a  Bond  Takes  Effect — What  the  Writ  must 
require — Execution  After  Death  of  a  Party — "Receiv- 
ing" the  Writ — Property  and  Property  Rights  Liable  to 
Levy — Levy  upon  Judgments — Levy  and  Sale  of  Fran- 
chise— Redemption  of  Franchise — Property  of  Wife  not 
Liable  for  Husband's  Debts — Delay  in  Service  of  Writ 
Inexcusable — Levy  on  Partnership  Property — Garnish- 
ment and  Demand — Assignee's  Lien — How  the  Writ  is 
Executed — Penalty  for  Refusing  to  Levy — Senior  and 
Junior  Writs — How  Sheriff  should  apply  Money  on  Execu- 
tion— Preferred  Labor  Claims — Levy  and  Sale  of  Personal 
Property — Penalty  for  Selling  without  Notice — When  Sale 
Should  be  Postponed — The  Title  the  Purchaser  Secures 
— When  Sheriff"  may  Levy  on  Realty  Instead  of  Personal 
Property — Seizure  and  Sale  of  Promissory  Note — Prevent- 
ing Bidding  at  Sale — How  Sale  should  be  Conducted — Re- 
sale   when  Bidder  Refuses   to    Pay — Judgment  Payable  in 


CONTENTS.  9 

Money — Purchaser  Entitled  to  Certificate  of  Sale — Sale  of 
Choses  in  Action — Effect  of  Quashing  an  Execution — At- 
tachment of  Vessels — Sale  of  Vessel  and  Payment  of  Pro- 
ceeds  §§  142-224. 

Chapter  IX. — Execution — Levy  and  Sale  of  Real 

Property. 

Levy  Upon  Real  Property. — Interests  in  Land  Attachable. — 
Notices  of  Sale. — Sale  without  Notice. — When  Party  is 
not  Aggrieved  without  Notice. — Setting  Aside  Sheriff's 
'Sale. — Irregularities  of  Sale.- — -When  and  How  Real  Prop- 
erty must  be  Sold. — Irregular  Levy. — Purchaser  at  Sheriff's 
Sale. — Certificate  of  Sale. — Sheriff's  Sales  not  Credit  Sales. 
— Relief  of  Purchasers.— Insufficient  Notice  no  Defense. — 
Relief  in  Discretion  of  Court. — When  Cannot  Recover 
Amount  of  Bid. — When  Misrepresentations  used  at  Sale. 
— Doctrine  of  Caveat  Emptor. — Recovery  from  Bidder  at 
Sale. — Time  of  Re-sale. — When  Mandamus  will  not  Lie  to 
Compel  Sheriff  to  Make  Deed. — Title  of  Purchaser  ot 
Leasehold  Interest. — Proceedings  against  Corporations. — 
Title  of  Purchasers  Generally. — Title  not  Dependent  on 
Sheriff's  Return. — When  Owner  is  Estopped  from  Asserting 
Title. — Certificate  of  Sale. — Cloud  on  Title. — Void  Levy  on 
Homestead. — Cloud  on  Homestead  Title. — When  Sale  may 
be  Enjoined. — How  Homestead  may  be  Levied  Upon. — 
Sale  ot  Homestead. — When  Judgment  not  a  Lien. — ^Judg- 
ment no  Lien  on  Homestead. — Return  of  Writ  §§  225-260. 

Chapi^er  X. — Foreclosure. 
Sales  under  Foreclosure. — Title  by  Foreclosure  Sale  §§261-262. 

Chapter  XI. — Redemption. 

Power  of  Sheriff"  in  Redemption. — When  Title  Passes. — Who 
may  Redeem. — Though  Defendant  has  Conveyed  to  An- 
other He  may  Redeem. — Time  of  and  Payment  in  Redemp- 
tion.— ^Judgment  Debtor  not  to  pay  Prior  Liens. — When 
Deficiency  on  Judgment  need  not  be  Paid  in  Redemption. 
— Status  of  Redemptioner. — Subsequent  Judgment  Lien. — 
When  Judgment  Debtor  or  Redemptioner  may  Redeem. — 


I O  CONTENTS. 

How  Redemptioner  may  Redeem.— Other  Redemptioners. 
— Who  Cannot  Redeem. — Redemption  Where  Tenants  in 
Common. — Rights  of  Creditors. — Rents  and  Profits  in 
Redemption. — Rights  of  Purchasers. — Rights  of  Mortgagor. 
— Redemption  of  Real  Estate  of  a  Decedent. — Change  from 
Real  to  Personal  Property. — Costs  of  Appeal  in  Redemp- 
tion.— Payments  in  Redemption. — Redemption  in  Treasury 
Notes. — Wha|;  Money  Sheriff  May  Receive  in  Redemption. 
Withdrawing  Redemption  Money  Defeats  Redemption. — 
Payment  Under  Protest. — The  Sheriff's  Deed   i^§  263-289. 

Chapter  XII. — Sheriff'.s  Deeds. 

When  Deed  is  Due.— When  Deed  Takes  Effect.— What  Sheriff's 
Deed  Conveys. — Recitals  in  Sheriff's  Deed. — Parol  Evi- 
dence not  Admissible. — Who  Estopped  by  Recitals  in 
Sheriff's  Deed. — Against  Whom  Officer's  Deed  is  Evidence. 
— How  Meaning  of  Deed  Ascertained. — Against  Whom 
Officer's  Deed  is  not  Evidence. — Sheriff's  Deed  Void. — 
When  Mandamus  to  Sheriff  will  not  Lie. — Deed  by  Deputy 
Sheriff". ^^  290-301. 

Chapter  XIII. — Writ  of  A.ssistance. 

Object  of  the  Writ.— Plaintiff  Entided  to  Immediate  Service.— 
Against  Whom  Writ  will  Issue. — When  Writ  will  be 
Refused.— When  Writ  May  Issue.— Where  Tenants  in 
Common.— Who  not  to  be  Removed.— Alias  Writ. — False 
Return §§302-310. 

Chapter  XIV. — Writ  of  Restitution. 

Requirements  of  the  Writ. — Writ  does  not  Determine  Rights 
of  Property. — Who  the  Sheriff  may  Dispossess. — Who  are 
Bound  by  the  Judgment.— Who  the  Sheriff  May  not  Dis- 
possess.—Who  may  be  Removed.— Notice  of  Pending  Suit. 
— An  Evasion  of  Process. — Colorable  Possession  of  Land. 
— Possession  of  Third  Pardes.— When  Mandamus  will 
Issue.— Forcible  Entry  Against  Sheriff".— Must  Show  Right 
of  Occupancy.— When  Sheriff"  may  demand  Indemnity.— 
Error  in  Writ §§  311-325- 


CONTENTS.  I  I 

Chapter  XV. — Suits  Against   Sheriffs   and    Cons- 

.  tables. 

Limit  of  Time  for  Actions  against  Officers. — Penalty  for  not 
Paying  Over  Moneys. — Demand  for  Property  Wrongfully 
Taken. — Sheriff's  Notice  to  Sureties. — Defect  in  Sheriff's 
Bond. — Remedy  Against  Sheriff. — Officer  not  Responsible 
Through  Laches  of  Another. — Defense  in  Action  for  Neglect. 
Liability  of  Sheriff's  Sureties. — Liability  of  Sureties  on 
Indemnity  Bond. — Liability  for  Illegal  Levy. — When  Pre- 
vious Demand  not  Necessary. — When  Demand  Necessary. 
— ^Justification  for  Seizure. — Duress  of  Goods. — Estoppel 
of  Owner  of  Attached  Property. — Receipt  to  Sheriff  as 
Estoppel. — Liability  of  Officer  and  Sureties  for  Trespass. 
— Action  for  Trespass. — Bond  to  Indemnify  Sheriff  for 
Unlawful  Act. — Violation  of  Duty  by  Sheriff.- — Agreement 
to  Indemnify  Sheriff. — Condition  of  Indemnity  Bond. — 
Plaintiff  Bound  by  his  Bond. — ^Judgment  Against  Sheriff. 
An  Estoppel  that  Protects  Sheriff. — Simple  Trespass. — 
Sheriff  Liable  for  Acts  of  Deputy. — When  Judgments  Can- 
not be  Set  Off. — Release  of  Sheriff  by  Stipulation. — 
Measure  of  Damages. — Offices  of  Sheriff  and  Tax-Collector 
Separate. — Actions  Upon  Undertakings §§  326-358. 

Chapter  XVL — Sheriff's  Fees. 

Fees  Allowed  by  Court. — Attorney  cannot  Bind  Client  for 
Certain  Fees. — Commissions  on  Executions. — Care  of  Court- 
House. — Prepayment  of  Fees. — Complaint  in  Action  for 
Fees. — Fees  in  Change  of  Venue. — In  Habeas  Corpus. — 
Fees  for  Copies. — Official  Duty  of  Sheriff.— Illegal  Fees. — 
Separate  Charges  for  Separate  Acts. — Mileage  for  Convey- 
ing Prisoners. — Officer  may  have  Execution  for  Fees 

§§359-371- 

Chapter  XVII. — Duties  of  Sheriff  and  Constables. 

The  Office  of  Sheriff — Suppression  of  Riots — Liability  on  Un- 
finished Process — When  Officer  may  Hold  Over — The  Fee 
Book^ — Prepayment  of  Fees — Deputy  Constables — Officer 
cannot  Act  as  Attorney — Dereliction  a  Misdemeanor — Gra- 
tuities   Prohibited — Penalty    for    Receiving    Illegal    Fees — 


1 2  CONTENTS. 

Making  Contracts  and  Buying  Claims — Duties  of  Sheriffs 
and  Constables  under  the  Act  of  1883 — Sheriff  to  Provide 
Court-Rooms,  Etc. — Void  Confiscations — Sheriff  to  Give 
Dead  Bodies  to  Physicians — Aid  to  Wrecked  Vessels — 
Sheriff  as  Auctioneer — Militia  Exemptions  from  Arrest — 
Process  of  Court  Martial — Intruders  on  Public  Lands — 
Computing  Time — When  Act  Falls  on  Holiday — What  are 
Holidays — Trespass  by  Deputy — Arrests  for  Fraud  and 
Torts — When  Prisoner  may  not  be  Handcuffed — Sheriff's 
Notice  to  Sureties — Arrest  Without  Warrant — Officer 
Making  Arrest  may  Summon  Aid — When  Warrant  must  be 
Shown — When  Arrest  may  be  at  Night — When  Arrest  can- 
not be  made  at  Night — Night  Time  Defined — How  Arrest 
is  Made — When  Force  may  be  Used — When  Doors  may  be 
Broken — Taking  Weapons  from  Prisoners — Name  of  De- 
fendant in  Warrant— How  Warrant  Executed  in  Another 
County — Taking  Prisoner  before  Magistrate — Proceedings 
before  the  Magistrate — Offense  Triable  in  another  County 
— Retaking  After  Escape — Prisoner  Entitled  to  Counsel — 
Liability  for  Delay — Rescuing  Prisoners — Escapes  from 
Jail — Carrying  Articles  to  Prisoners — Refusing  to  Receive 
Prisoners — Making  Arrests,  Etc.,  Without  Authority — As- 
saults by  Officers — Refusing  to  Aid  Officers — Prisoners 
brought  from  Other  Counties  as  Witnesses — Food  and 
Lodging  for  Juries — Inhumanity  to  Prisoners — Gambling — 
Injuring  Jails — Removal  from  Office — ^Jurisdiction  of  Offen- 
ses-— Service  of  Bench  Warrant, §§  372-431. 

cliaiter  xviii. subpcena  in   civil   and    criminal 

Cases. 

In  Civil  Cases: — Issued  by  Justice  of  the  Peace — Issued  with 
Blank — Subpoenas  Defined — How  Issued — How  Served — 
Witness'  Fees — Concealed  Witness — When  Witness  Com- 
pelled to  Attend — Arrest  of  Witness — If  Witness  be  a 
Prisoner — Witnesses  Protected  from  Arrest — When  Arrest 
of  Witness  is  Void — Liability  of  Officer  for  Detention  of 
Witness — Discharge  of  Witness  from  Arrest — Witnesses 
before  Board  of  Supervisors, ^5^  432-445. 

In  Criminal  Cases: — Subpoena  Defined  and  Who  may  Issue 
— By  Whom  and  How  Served — Foreign  Supboena — Ex- 
pense of  Witnesses, i^§  446-449. 


CONTENTS.  1 3 

CH-vrrER  XIX. — The  County  Jail. 

By  Whom  Kept  and  for  What  Used.— Rooms  Required  in 
Jails. — Prisoners  to  be  Classified. — Prisoners  must  be  Con- 
fined.—United  States  Prisoners.— When  Jail  of  Contiguous 
County  may  be  Used.^ — Removal  in  Case  of  Fire. — Removal 
in  Case  of  Pestilence. — Service  of  Papers  on  Prisoners. — 
Guard  for  Jail. — Must  Receive  all  Prisoners  Committed. — 
Prisoners  on  Civil  Process. — Prisoners  Required  to  Labor, 
§§450-462. 

Chapter  XX, — Search  Warrants. 
Search  Warrants  and  How  Served §463- 

Chapter  XXI — Fugitives  from  Justice. 

Fugitives  from  Justice  may  be  Brought  Back  on  Requisition, 
and   how  Requisition  is  Procured §464- 

Chapter  XXII. — Rewards. 

Offer  of  Reward  Binding. — When  Reward  is  not  Earned. — 
Action  to  Recover  Reward §§465-467. 

Chapter  XXIII. — Sheriffs'  and  Constables'  Forms. 

Attachment.  no.  of  Form. 

Order  for  Attachment  of  Personal  Property 44 

Order  for  Attachment  of  Real  Estate 45 

Undertaking  to  Prevent  Attachment.. 50 

Undertaking  on  Release  of  Attachment 51 

Indemnity  Bond  in  Attachment 53 

Notice  of  Attachment  of  Real  Property 43 

Order  for  Release  of  Attachment 46 

Notice  of  Attachment  of  Stocks 47 

Notice  of  Attachment  of  Personal  Property-. 48 

Answer  to  Garnishment 49 

Inventory  of  Personal  Property 72 

Return  When  Defendant  Gives  Undertaking 15 

Return  of  Attachment  of  Personal  Property 16 

Return  of  Attachment  of  Real  Estate 17,  18,  19 


1 4  CONTENTS. 

Affidavit  of  Service  no.  of  Form. 

Of  Summons lo 

Of  Subpoena  in  Civil  Cases 13 

Arrest  and  Bail. 

Return  on  Order  of  Arrest 11 

Assistance, 

Return  on  Writ  of 30 

Answer 

To  Garnishment 49 

Bond 

Of  Indemnity  in  Attachment. 53 

Of  Indemnity  in  Execution 54 

Citation, 

Return  on 32 

Corporation. 

Return  of  Summons  on  Local  Corporation 5 

Return  of  Summons  on  Foreign  Corporation 5 

Certiorari, 

Return  on 31 

Certificate  of  Sale 

Under  Execution 59 

Under  Foreclosure 60 

Of  Stock 58 

Certificate  of  Redemption 

Of  Real   Property 66 

Criminal  Subpcena, 

For  Witness  before  Grand  Jury 67 

For  Witness  before  Court 68 

Death  Warrant 74 

Deed, 

Under  Foreclosure 62 

Under    Execution . .'. 61 

Execution. 

Order  for  Levy  and  Sale  of  Real  Estate 41 

Order  for  Levy  and  Sale  of  Personal  Property 40 

Notice  of  Levy  on  Real  Estate 42 

Notice  for  Publication  of  Levy  on  Real  Estate 56 

Notice  of  Sale  of  Personal  Property 55 


CONTENTS.  15 

No.  of  Form. 

Inventory  of  Personal   Property 72 

Certificate  of  Sale  of  Real  Estate 59 

Indemnity  Bond  under  Execution 54 

Deed  Under  Execution 61 

Return  of  Personal  Property  Sale 23 

Return  of  Real  Estate  Sale 24 

Notice  of  Foreclosure  Sale 57 

Of  Death  Warrant 74 

Foreclosure, 

Return  of  Sale  Under 25 

Notice  of  Foreclosure  Sale 57 

Deed 62 

Certificate  of  Sale 60 

Fees. 

Monthly  Statement  to  Auditor 63 

Semi- Yearly  Statement  to  Auditor 64 

Garnishment 

Of  Stocks 47 

Return  of  on  Bank 20 

Return  where  Served  on   Individual 22 

Return  when  no  Statement  Made 21 

Of  Personal  Property  Generally 48 

Answer  to  Garnishment 49 

Grand  Jury. 

Summons  of  Jurors 69 

Subpoena  for  Witnesses   Before 67 

Habeas  Corpus. 

Return  on  Writ 73 

Injunction. 

Return  of  Writ  Served  on  Individual 37 

Return  when  Served  on  Board  of  Supervisors 38 

Indemnity  Bond. 

Against  Claim  under  Attachment 53 

Against  Claim  under  Execution 54 

Inventory 

Of  Personal  Property  under  Attachment 72 

On  Search  Warrant 34 

Jurors. 

Return  on  Jury  Venire 39 


1 6  CONTENTS. 

No.  of  Form. 

Trial  Jury   Summons 70 

Special   Jury  Summons 71 

Grand  Jury  Summons 69 

Justice  Court. 

Return  of  Summons  with  Clerk's  Certificate 8 

Return  of  Summons 7 

Jailor, 

Monthly  Statement  of 65 

Minors, 

Return  of  Summons   on i 

Notice 

Of  Attachment  of  Real  Property 43 

Of  Sale  of  Personal   Property 55 

Of  Sale  of  Real  Property  under  Execution 56 

Of  Foreclosure  Sale 57 

Of  Levy  on  Real  Estate  under  Execution 42 

Order 

To  Attach  Personal  Property 44 

To  Attach  Real  Estate 45 

To  Release  Attachment 46 

For  Sale  of  Personal  Property 40 

For  Sale  of  Real  Estate 41 

Personal  Property, 

Return  on  Attachment  of. 16 

Order  for  Attachment  of. 44 

Garnishment  of 48 

Replevin. 

Return  of  Writ  when  Property  Delivered  to  Plaintiff...  26 
Return  of  Writ  when   Property  Re-delivered   to   De- 
fendant.    27 

Restitution, 

Return  of  Service  of  Writ  of 28 

Return  of  Writ  not  Sened 29 

Release. 

Order  to  Release  Attachment 46 

Undertaking  on  Release  of  Attachment 51 

Redemption. 

Certificate  of  Redemption 66 


contp:nts.  1 7 

Return,  no.  of  Form. 

On  Attachment  of  Real  Property  Standing  of  Record 

in  name  of  Defendant,  where  there  is  no  Occupant...  19 
On  Attachment  of  Real  Estate  Standing  of  Record  in 

name  of  Defendant,  where  there  is  an  Occupant. 18 

On  Attachment  of  Real  Estate  Standing  of  Record  in 

the  name  of  a  Person  other  than  a  Defendant 17 

On  Attachment  of  Personal  Property 16 

On  Attachment  where  Defendant  gives  an  Undertaking  15 
On  Order  of  Arrest  on  Summons  in  Arrest  and  Bail  in 

J  ustice's  Court 1 1 

On  Writ  of  Assistance 30 

On  Writ  of  Certiorari 31 

On  Citation 32 

On  Execution  where  Real  Estate  has  been  Levied  on 

and  Sold 24 

On  Execution — levy  and  Sale  of  Personal  Property 23 

On  Foreclosure  Sale 25 

On  Garnishment  on  individual  with  Answer 22 

On  Garnishment  where  no  Answer  is  made 21 

On  Garnishment  on  a  Bank 20 

On  Habeas  Corpus 73 

On  Injunction  Served  on  an  Individual 37 

On  Injunction  Served  on  a  Board  of  Supervisors 38 

On    Replevin   when  Property   is  Re-delivered  to  De- 
fendant   "• 27 

On  Replevin  when  Property  is  Delivered  to  Plaintiff....  26 

On  Writ  of  Restitution. 28 

On   Writ   of   Restitution    not    Served  by    Reason    of 

Strangers  in  Possession 29 

On  Summons  Served  on  Defendant 2 

On  Summons  Ser\'ed  on  Several  Defendants 3 

On  Summons  Ser\'ed  on  a  Defendant  and  not  Served  as 

to  Other  Defendants 4 

On  Summons  Served  on  Local  Corporation 5 

On    Summons   Served   on   Foreign   Corporation    (see 

note  to) 5 

On  Summons  Served  on  Minors i 

On  Summons  Served  on  Defendant  of  Unsound  Mind..  6 

On  Justice's  Court  Summons 7 

On  Justice's  Court  Summons  when  County  Clerk's  Cer- 
tificate is  attached 8 

2 


1 8  CONTENTS. 

No.  of  Form. 

On  Summons  when  Defendant  could  not  be  Found 9 

On  Summons  Served  by  Person  Other  than  Officer 10 

On  Subpcena  in  Civil  Cases 12 

On    Subpoena  in   CWW   Case  when   Served  by  Person 

Other  than  Officer 13 

On  Subpcena  in  Criminal  Case 14 

On  Venire  for  Jurors 39 

On  Warrant  of  Arrest 36 

On  Search  Warrant 35 

Real  Estate, 

Order  for  Release  of  Attachment  on 46 

Notice  of  Attachment  of. 43 

Order  for  Attachment  of. 45 

Certificate  of  Redemption  of. 66 

Receipts 

To  Sheriffi 52 

Sale. 

Return  on  Foreclosure  Sale 25 

Return  on  Real  Estate  Sale 24 

Return  on  Personal  Property  Sale 23 

Certificate  of  Sale  of  Stock 58 

Notice  of  Foreclosure  Sale 57 

Order  for  Sale  of  Personal  Property 40 

Order  for  Levy  and  Sale  of  Real   Estate 41 

Notice  of  Execution  Sale  of  Personal  Property 55 

Notice  of  Execution  Sale  of  Real  Property 56 

Bench  Warrant, 

Form  of 33 

Return  on 35 

Inventory    on 34 

Supervisors, 

Return  of  Service  of  Injunction  on  Board  of. 38 

Stock, 

Certificate  of  Sale  of. 58 

Garnishment  of 47 

Subpcena. 

Return  on  in  Criminal  Case 14 

Return  on  in  Civil  Case 12 

Affidavit  of  Service  of. 13 

For  Witness  before  Grand  Jury 67 


CONTENTS.  19 

Summons.  no.  of  Form. 

Return  of  Service  on  a  Defendant 2 

Return  of  Service  on  Several  Defendants 3 

Return  of  Service  on  One  and  not  on  Others 4 

Return  of  Service  on  Local  Corporation 5 

Return  of  Service  on  Foreign  Corporation 5 

Return  of  Service  on  Minors i 

Return  of  Service  on  Defendant  of  Unsound  Mind 6 

Return  of  Service  of  Justice's  Court  Summons 7 

Return  of  Summons  with  Clerk's  Cercificate 8 

Return  when  Defendant  not  found 9 

Affidavit  of  Service  of. 10 

Trial  Jury  Summons 70 

Special  Jury  Summons  7^ 

Grand  Jury  Summons ; 69 

Trial  Jury. 

Summons  of  Trial  Jurors 7° 

Undertaking 

To  Prevent  Attachment 50 

To  Release  Attachment 51 

Return  on  Attachment  when  Undertaking  given 15 

Venire. 

Return  on  Jury  Venire  39 

Warrant. 

Return  on  Warrant  of  Arrest  36 

Return  on  Search  Warrant  35 

Search    Warrant  33 

Chapter  XXIV. — Fees  of  Sheriffs  and  Constables. 


^  I 

§2 

§3 
§4 
§5 
§6 

§7 

§  8 

§9 

§  lO 

§11 

§  12 
§  13 
§  14 
§  15 
§   16 

§  17 
§  18 
§  19 
§  20 
§  21 


CHAPTER   I. 

OF    THE    SUMMONS. 

Plaintiff's  Right  to  Prompt  Service. 

Receipt  of  Summons. 

The  Complaint. 

Clerk's  Certificate  on  Summons. 

By  Whom  may  be  Served. 

How  Served  on  Minors. 

Service  on  Corporations,  etc. 

Service  on  Vessels. 

Avoiding  Service. 

Officer  Should  ascertain  True  Name  of  Defendant. 

Insufficient  Evidence  of  Service. 

Informal  yet  Sufficient  Service. 

'R.^X.wxvi  prima  facie  Evidence  of  fact  stated  therein. 

Sufficient  Proof  of  Service. 

Return  of  Deputy  not  made  in  name  of  Sheriff. 

Return  when  not  Served  by  Officer. 

Sheriff's  Return  not  Traversable. 

Inexcusable  Delay  in  serving  Summons. 

When  Summons  should  be  Returned. 

Re-delivery  of  Original  after  Filing. 

Erasures  in  Return. 


§  I.  Prompt  Service  Due  to  Plaintiff. — The  ser- 
vice of  the  summons — and,  in  fact,  of  any  process — 
should  not  be  unnecessarily  delayed.  The  plaintiff  is 
in  pursuit  of  his  rights,  and  he  may  reasonably  expect 
prompt  assistance  in  that  pursuit,  from  the  officers 
upon  whom  he  must   rely.     Delay    in    the    service    of 


§§   2-5  OF  THE  SUMMONS.  2  2 

even  so  simple  a  process  may  subject  him  to  irrepara- 
ble loss.  He  is  entitled  by  right  to  every  facility  which 
the  law  allows  him  to  a  speedy  hearing  of  his  cause 
before  the  court. 

§  2.  The  Receipt. — The  original  summons  should 
be  endorsed  as  soon  as  received,  with  the  month,  day, 
year,  hour  and  minute  of  its  reception;  copies  for  ser- 
vice prepared,  and  compared  with  the  original,  to  en- 
sure correctness,  and  a  copy  of  the  complaint  attached 
to  one  of  the  copies  of  summons, 

§  3.  The  Complaint. — A  copy  of  the  complaint  for 
service  will  be  furnished  to  the  officer  with  the  oricrinal 
summons.  If  the  case  is  brought  in  a  Justice's  Court, 
the  complaint  may  be  either  a  concise  statement,  in 
writing,  of  the  facts  constituting  the  plaintiff's  cause  of 
action,  or  a  copy  of  the  account,  note,  bill,  bond,  or  in- 
strument upon  which  the  action  is  based.  (  §  853  C.  C.  P.) 

§  4.  County  Clerk's  Certificate. — When  a  sum- 
mons, issued  by  a  Justice  of  the  Peace,  is  to  be  served 
out  of  the  county  in  which  it  was  issued,  the  summons 
must  have  attached  to  it  a  certificate  under  seal  by  the 
county  clerk  of  such  county,  to  the  effect  that  the  person 
issuing  the  same  was  an  acting  Justice  of  the  Peace  at 
the  date  of  the  summons.  The  copy  of  summons 
served  by  the  officer  should  have  attached  to  it  a  copy 
of  such  certificate.  (§  849  C.  C.  P.) 

§  5.  By  Whom  may  be  Served. — Section  410  of 
the  Code  Civil  Procedure  provides  that  the  summons 
may  be  served  by  the  sheriff  of  the  county  where  the 
defendant  is  found,  or  by  any  other  person,  over  the 


23  OF  THE  SUMMONS.  §  6 

age  of  eighteen,  not  a  party  to  the  action.  When  it 
is  served  by  any  person  other  than  the  sheriff,  the  re- 
turn must  be  by  an  affidavit  of  such  person  of  its  ser- 
vice, and  the  return  must  state  that  at  the  time  of  the 
service,  the  person  serving  it  was  over  the  age  of 
eighteen,  and  not  a  party  to  the  action.  (See  Sheriffs' 
and  Constables'  Forms,  Chap.  XXIII.) 

§  6.  How  Served  on  Minors. — Sub-division  3  of 
section  411,  Code  Civil  Procedure,  provides  for  the 
service  of  summons  on  minors  under  the  age  of  four- 
teen years.  Not  only  should  a  copy  of  the  summons 
be  delivered  to  each  minor,  but  a  copy  for  each  minor 
should  be  delivered  to  the  father,  mother,  or  guardian, 
or  the  person  having  the  care  or  control  of  such  min- 
ors, or  with  whom  they  reside,  or  in  whose  service  they 
are  employed. 

If  a  father  sues  his  infant  son  residing  with  him.  and 
the  statute  requires  the  summons  to  be  served  per- 
sonally on  the  infant  and  also  on  the  father,  a  service 
on  the  infant  alone  is  sufficient,  for  the  father  has  no- 
tice of  the  suit  without  service.  (Brown  z>.  Lawson,  51 
Cal.  615.) 

The  return  of  service  should  be  sufficiently  explicit 
to  show  that  not  only  a  copy  of  the  summons  had  been 
delivered  to  each  minor,  but  that  in  addition  thereto 
a  copy  was  delivered  to  the  father,  or  mother,  or 
guardian,  etc.,  for  each  minor.  There  are  no  means 
of  avoiding  the  provision  of  the  Code  which  requires 
service  of  summons  upon  infant  defendants.  The 
Court  acquires  jurisdiction  of  the  persons  of  infant 
defendants,  so  as  to  authorize  the  appointment  of  a 
guardian  ad  litem  for  them,  onl)-  by  service  of  sum.- 
mons  upon  the  infants. 


§   7  OF  THE  SUMMONS.  24 

§  7.  Service  on  Corporations,  Etc.  The  manner 
of  service  upon  corporations,  insane  persons,  counties, 
cities  and  towns,  is  provided  for  in  section  411  Code 
of  Civil  Procedure.  Service  on  a  corporation  formed 
under  the  laws  of  this  State,  is  made  upon  the  presi- 
dent, or  other  head  of  the  corporation,  secretary,  cash- 
ier, or  managing  agent  thereof;  on  a  foreign  corpora- 
tion, upon  its  agent,  cashier  or  secretary;  upon  an 
insane  person,  by  service  on  said  person  and  also  on 
his  guardian ;  on  a  county,  city  or  town,  to  the  presi- 
dent of  the  board  of  supervisors,  president  of  the  coun- 
cil or  trustees,  or  other  head  of  the  legislative  depart- 
ment thereof 

In  an  action  against  a  corporation,  where  the  sum- 
mons was  served  upon  Bristol,  who  had  been  duly 
elected  its  president,  and  presided  at  several  meet- 
ino-s  of  its  board  of  trustees,  and  who  had  never  re- 
signed,  or  been  removed,  or  his  office  declared  vacant. 
or  a  permanent  president  chosen  in  his  place — though 
he  had  left  the  county  and  no  longer  took  any  part  in 
the  management  of  the  corporation  affairs,  and  at  the 
meeting  of  the  Board  after  his  so  leaving  the  county, 
another  person  was  elected  President /re*  tefu.,  for  that 
meeting,  and  was  regarded  by  the  stockholders  as  the 
President:  held,  that  Bristol  was  still  President  dc  jure, 
and  the  service  upon  the  corporation  valid.  (Eel  River 
N.  Co.  V.  Struver,  41  Cal,  618.) 

In  Aiken  v.  Mariposa  Mining  Co.,  6  Cal.  186,  an 
action  against  a  corporation  by  its  corporate  name,  the 
Sheriff's  return  showed  that  the  summons  was  served 
on  "defendant  Waddell,  who  was  in  possession  of  the 
property;"  the  name  of  Waddell  was  not  mentioned  in 
the  complaint,  and  it  did  not  appear  how  he  became  a 
defendant,  or  of  what  property  he  was  in  possession. 


2  5  OF  THE  SUMMONS.  §§  8,   9 

The  court  held  that  as  Waddell  was  not  shown  to 
be  one  of  the  officers  named,  judgment  by  default 
was  improperly  entered,  and  it  was  reversed  with 
costs. 

In  Rowe  v.  Table  Mountain  W.  Co.,  lo  Cal.  444,  a 
question  was  raised  as  to  the  regularity  of  a  judgment 
by  default,  on  a  service  of  the  summons  upon  one  M. 
as  president,  and  C.  as  secretary,  without  proof  be- 
yond the  mere  return  that  those  persons  were  such 
officers.  The  court  held  that  as  the  statute  expressly 
authorized  a  service  upon  the  corporation  by  serving 
the  summons  on  their  officers,  and  as  the  practice  had 
been  to  take  judgment  by  default  upon  similar  returns, 
they  would  not  hold  it  erroneous. 

§  8.  In  actions  against  Vessels. — In  an  action 
against  a  steamer,  vessel,  or  boat,  the  summons  and 
copy  of  the  complaint  must  be  served  on  the  owners 
if  they  can  be  found ;  otherwise,  they  may  be  served 
on  the  master,  mate,  or  person  having  charge  of  the 
steamer,  vessel,  or  boat.      (§.  816,  C.  C.  P.) 

§  9.  Avoiding  Service.  —  Serious  annoyances 
sometimes  occur  from  incomplete  services  of  summons, 
and  from  imperfect  returns  of  service.  Defendants 
often  attempt  to  avoid  service,  and  when  found  and 
the  summons  is  tendered  to  them,  refuse  to  take  it. 

It  is  a  sufficient  service  in  such  a  case  to  lay  the 
summons  upon  the  defendant's  arm  or  shoulder,  or 
reach  it  toward  him  and  let  go  of  it,  leaving  it  to  the 
defendant  to  take  or  let  it  alone.  A  court  will  hold 
that  it  does  not  lie  in  the  mouth  of  a  person  to  say  he 
was  not  served  with  process  when  it  is  offered  to  him 
and  he  refuses  to  take  it. 


§    I  I  OF  THE  SUMMONS.  26 

§  lo.  True  Name  of  Defendant. — The  return 
of  the  officer  should  show  the  true  name  of  the  de- 
fendant served ;  and,  to  ascertain  the  true  name,  he 
should  ask  the  party  served  if  the  name  designated  in 
the  summons  is  his  true  name.  If  the  name  in  the 
summons  is  Alfred  Brown,  and  the  true  name  of  the 
defendant  is  Albert  Browne,  he  should  return  that  he 
served  the  summons  on  Alfred  Brown,  the  within 
named  defendant,  whose  true  name  is  Albert  Browne. 

The  copy  of  summons  must  be  delivered  to  the 
defendant  personally.  It  is  no  service  on  a  defendant 
to  deliver  it  to  any  relative  of  the  defendant  for  him. 

The  law  is  explicit  in  this  regard,  and  wisely  so ;  for, 
if  it  were  otherwise,  advantage  might  be  taken  in  many 
ways  by  evil-disposed  persons  to  defraud  defendants 
of  their  rights.  A  court  acquires  no  jurisdiction  over 
a  defendant  who  has  not  been  legally  brought  into  court. 

By  reference  to  §  410  Code  of  Civil  Procedure,  it 
will  be  observed  that,  in  the  service  of  the  summons, 
"a  copy  of  the  complaint  must  be  served  with  the 
summons,  unless  two  or  more  defendants  are  residents 
of  the  same  county,  in  which  case  a  copy  of  the  com- 
plaint need  only  be  served  upon  one  of  such  defend- 
ants." The  officer's  return,  to  be  absolutely  complete, 
should  state  that  the  defendant  upon  whom  the  copy 
of  complaint  was  served  was  at  the  time  of  such  ser- 
vice a  resident  of  the  county  in  which  the  service  was 
made. 

§11.  Insufficient  Evidence  of  Service.  —  In 
O'Brien  v.  Shaws  Flat  &  T  C.  Co.,  10  Cal..  343, 
where  the  return  of  the  sheriff  showed  that  he  served 
the  summons  "upon  James  Street,  one  of  the  pro- 
prietors of  the  company,"  the  court  held  it  was  not 


27  OF  THE  SUMMONS.  §§    12,    I  3 

sufficient  evidence  of  service  to  give  the  court  juris- 
diction, and  that  the  summons  might,  with  as  much 
propriety,  have  been  served  upon  any  other  stranger. 
A  summons  from  a  justice's  court  was  addressed  to 
defendants  Adams  &  Co.  The  constable  returned 
that  he  had  served  it  "by  leaving  a  copy  thereof  with 
Captain  Charles  B.  Macy,"  with  the  date.  Judgment 
by  default  thereon  was  held  bad.  The  court  said  the 
justice  could,  with  as  much  propriety,  have  entered 
judgment  on  a  certificate  of  service  upon  any  other 
person.  (Adams  v.  Towne,  3  Cal.,  247.)  The  sheriff's 
return  that  the  summons  was  served  on  one  of  the 
members  is  prima  facie  evidence  of  that  fact.  (Wilson 
V.  Spring  Hill,  etc..  Co.,  10  Cal.,  445.) 

§  12.  Informal  Service. — Where  the  return  on  a 
summons  states  that  a  copy  of  the  summons  was  per- 
sonally served  on  the  defendant  in  the  action,  giving 
the  time  and  place,  this  return,  it  is  held  in  Drake  v. 
Duvenick,  45  Cal.  455,  that  although  informal,  is  suf- 
ficient to  give  the  court  jurisdiction  of  the  person,  so 
that  the  judgment  is  not  void  for  want  of  jurisdiction, 
when  collaterally  attacked.  Also,  held,  that  while  such 
return  does  not  show  that  a  copy  of  the  complaint  was 
not  delivered  to  the  defendant  personally,  it  has  at 
least  some  legal  tendency  to  prove  that  it  was  so 
delivered.  Also,  that  if,  in  such  a  case,  there  is  more 
than  one  defendant,  the  fact  that  the  return  does  not 
state  that  a  copy  of  the  complaint  was  served  with  the 
summons,  does  not  render  the  judgment  void  in  a 
collateral  attack. 

§  13.     Return  Prima  Facie  Evidence  of  Fact. 

— The   following  return   was  held  to  be  o;-ood  in  the 


§14  OF  THE  SUMMONS.  28 

case  of  Cardivell  v.  Sabichi,  59  Cal.  490.  "I  hereby 
certify  that  I  have  served  the  within  summons  by 
delivering  a  copy  thereof,  together  with  true  copy  of 
complaint,  personally,  at  the  Township  and  County  of 
Los  Angeles,  this  25th  day  of  April,  1879.  W. 
Bettis,  constable."  etc.  It  will  be  observed  that  this 
return  fails  to  state  upon  whom  summons  was  served, 
but  as  there  was  but  one  defendant,  the  court  could 
determine  that  the  service  was  made  upon  him.  Nor 
does  it  state  that  the  copy  of  complaint  delivered  was 
a  copy  of  the  complaint  in  the  action  mentioned  in  the 
summons.  It  also  fails  to  state  that  the  service  was 
personal,  but  only  that  the  officer  acted  in  person. 
The  return  was  held  to  be  sufficient  proof  of  service ; 
as,  whatever  may  be  the  difference  between  superior 
and  inferior  courts,  with  reference  to  presumptions 
indulged  in  their  favor,  there  is  none  between  sheriffs 
and  constables;  (Political  Code,  §  4315,)  and  the 
return  of  a  sheriff  is  prima  facie  evidence  of  the 
facts  stated;  (Political  Code,  §  4178.)  and  by  force  of 
section  4315  the  same  effect  is  given  to  a  constable's 
return. 

§  1 4.  Sufficient  Proof  of  Service. — Where  a  gen- 
eral power  of  serving  process  is  given  to  an  officer,  a 
general  return  is  sufficient.  (McMillan  v.  Reynolds,  1 1 
Cal.  379.)  The  following  cases  are  also  cited  in  point 
to  prove  the  sufficiency  of  such  a  return:  (Cantley  v. 
Moody,  7  Port.  (Ala.)  443;  Lenoir  v.  Broadhead,  50 
Ala.  58;  Holsinger  z'.  Dunham,  11  Ind.  346;  Chandler 
V.  Miller,  II  id.  382;  Keithley  z^-.  Borum,  3  Miss.  683; 
Crane  v.  Brannan,  3  Cal.  195,  196.)  In  its  opinion  in 
the  case  of  Cardivell  v.  Sabichi,  the  court  cited  sections 
849,  411  and  415  of  the  Code  of  Civil  Procedure,  and 


29  OF  THE  SUMMONS.  §§    I  5 

sections  4315  and  4176  of  the  Political  Code,  and  fur- 
ther said:  In  Legg  v.  Stillman  et  al.,  2  Cowan,  418, 
which  was  certiorari  to  a  Justice's  Court,  the  suit  was 
by  summons  in  the  court  below,  and  the  return  on  the 
summons  was  as  follows  :  "  Personally  served  May  14, 
1822.     Fees,  $0.13.     Thomas  McKnight,  Const." 

The  return  was  held  sufficient.  In  the  case  cited,  the 
objection  to  the  judgment  was  made  in  a  collateral 
action,  as  in  the  case  defore  us  for  decision.  The  judg- 
ment was  adjudged  valid.  Our  views  in  this  case  are 
in  accord  with  the  ruling  in  Legg  v.  Stillman,  which  rul- 
ing meets  our  approval.  In  the  case  cited,  the  time  and 
manner  of  service  were  shown,  and  in  this  case,  the 
time,  manner,  and  place  of  service  appear.  In  neither 
case  is  defendant  mentioned,  either  by  name  or  by  be- 
ing designated  as  defendant.  As  to  the  point,  that 
the  return  does  not  show  that  the  copy  of  the  complaint 
served  was  the  copy  of  the  complaint  in  the  action  of 
Perr)',  et  al  v.  Wolfskill,  we  have  to  say,  that  we  do  not 
think  it  tenable.  The  return  afforded  some  evidence 
that  it  was  such  copy,  and  we  can  not  say  that  the  proof 
in  this  regard  was  not  sufficient  to  authorize  the  Justice 
to  render  a  judgment  by  default.  (See  Code  Civ. 
Proc.  §  871;  Drake  v.  Duvenick,  45  Cal.  455.) 

§  15.  Return  of  Deputy  not  made  in  name  of 
Sheriff. — The  return  of  a  deputy  sheriff,  on  a  process 
served,  is  a  nullity,  unless  made  in  the  name  of  the 
sheriff.  (Rowley  v.  Howard,  23  Cal.  402.)  A  sum- 
mons was  served  by  a  deputy  sheriff,  and  returned 
with  the  following  signature  to  the  return:  "Elijah  T. 
Cole,  D.  S."  It  was  held  that  this  return  was  insuf- 
ficient to  give  the  court  jurisdiction,  or  authorize  him 
to  enter  a  default  judgment. 


§§    1 6,    17  OF  THE  SUMMONS.  30 

§  16.     Return  when  not  Served   by  Officer. — 

An  affidavit  of  service  of  summons  by  a  person  other 
than  the  sheriff  should  state  that  such  person  was  over 
the  age  of  eighteen  at  the  time  of  such  service,  and 
not  a  party  to  the  action. 

§  17.  Sheriff's  Return  not  Traversable. — The 
return  of  the  sheriff  upon  process  or  notices  is  prima 
facie  evidence  of  the  facts  in  such  return  stated, 
(§  4178,  Pol.  Code)  and,  held  in  Egery  v.  Buchanan, 
5  Cal.  56,  that  a  sheriff's  return  is  not  traversable,  nor 
can  it  be  attacked  collaterally,  even  if  he  has  been 
guilty  of  fraud  or  collusion.  While  the  courts  may 
sometimes,  under  certain  circumstances,  overlook 
irregularities  in  officers'  returns,  they  will  not  do  so  in 
all  cases.  The  lanoruao^e  of  the  law  relating  to  the 
service  of  process  should  be  closely  studied,  its  direc- 
tions strictly  followed,  and  the  return  should  be  made 
in  strict  accordance  with  the  acts  performed,  as 
expressed  in  the  statutory  directions  laid  down  for  the 
officer's  observance.  Yet,  while  it  is  advisable  in  all 
cases  to  literally  comply  with  the  provisions  of  the 
code,  nothing  short  of  a  substantial  departure  there- 
from can  properly  be  held  to  be  fatal  to  a  proceeding 
under  it.  'Tts  provisions  and  all  proceedings  under 
it  are  to  be  liberally  construed  with  a  view  to  effect  its 
object  and  to  promote  justice,"  (C.  C.  P.  4.)  For 
example:  The  code  provides  that  the  name  of  the 
plaintiff's  attorney  must  be  indorsed  on  the  summons. 
(C.  C.  P.  407.)  In  the  case  of  Shinn  v.  Cummins, 
where  the  name  of  plaintiff's  attorney  appeared  on 
the  face  and  not  on  the  back  of  the  summons,  it  was 
held  that  defendant  was  not  prejudiced  by  plaintiff's 
failure  to  literally  comply  with  the  statute. 


31  OF  TIIK  SUMMONS.  §§    l8,   I9 

§  18.  Inexcusable  Delay  in  Service. — If  a  sum- 
mons is  not  served  until  three  years  after  the  complaint 
is  filed  and  it  is  issued,  and  there  is  no  reasonable 
excuse  for  the  delay,  the  service  will  be  set  aside,  on 
motion,  and  the  suit  dismissed.  (Eldridge  v.  Kay, 
45  Cal.  49.)  In  this  case,  the  defendants  during  all  the 
time  were  living  within  a  short  distance  of  the  plaintiff, 
and  were  easy  to  be  found.  The  court  held  that  such 
delay  was  absolutely  without  excuse,  and  that  it  would 
be  a  practical  defeat  of  the  statute,  which  limits  the 
issuance  of  a  summons  to  the  period  of  one  year  after 
the  filing  of  the  complaint. 

Where  a  complaint  was  filed  and  summons  issued 
more  than  eight  years  before  service,  a  motion  to  set 
aside  the  summons  and  strike  the  complaint  from  the 
files,  was  properly  granted.     (Dupuy  v.  Shear,  29  Cal. 

238.) 

Allowinof  an  action  to  rest  without  service  of  sum- 
mons,  for  two  years  and  eight  months  after  the 
summons  is  issued,  is  such  a  want  of  diligence  as  to 
justify  the  court  in  dismissing  the  action.  (Grigsby  v. 
Napa  Co.,  36  Cal.  585.) 

In  making  service  of  a  summons,  and  in  the  return 
of  such  service,  the  provisions  of  the  statute  must  be. 
and  must  be  shown  to  have  been,  substantially  ob- 
served and  followed  by  the  ofiicer,  otherwise  the  pro- 
ceedings cannot  be  supported  upon  a  direct  appeal 
taken.     (The  People  v.  Bernal,  43  Cal.  385.) 

§  19.     When  Summons  Should  be  Returned. — 

The  summons  should  be  returned  as  soon  as  served. 
It  may  not  be  necessary  for  any  purpose  that  it  should 
be  returned  on  the  same  day,  but  the  clerk's  office  is 
the  proper  place  for  all  process,  and  where  all  parties 


§§   20,  2  1  OF  THE  SUMMONS.  32 

interested  in  legal  proceedings  have  reason  to  expect 
to  find  their  papers  on  file.  If  the  officer  is  instructed 
to  serve  only  a  portion  of  the  defendants,  and  there 
are  others  to  serve  elsewhere,  the  summons  should  be 
delivered  to  the  plaintiff  or  his  attorney,  to  enable  him 
to  secure  service  on  the  others. 

§  20.  Re-delivery  after  Filing. — After  the  sum- 
mons has  been  filed  on  return  with  the  clerk,  its  re- 
delivery without  an  order  of  court  would  be  an  irregu- 
larity, of  which  the  party  opposed  thereto  might  avail 
himself  by  direct  attack  on  the  trial  of  the  action ; 
though  such  irregularity  would  not  render  the  service 
of  the  summons  void.  (Hancock  v.  Pruess,  40  Cal. 
572.)  After  a  summons  has  been  served  on  some  of 
the  defendants,  and  returned,  it  is  competent  to  the 
court  to  order  it  delivered  to  the  plaintiff  for  further 
service  on  other  defendants  in  the  same  or  another 
county.      (Hancock  v.  Pruess,   40  Cal.  572.) 

§  21.  Erasures  in  Return. — Where  the  judgment 
of  the  court  recites  that  the  summons  was  served  on 
the  defendant,  the  fact  that,  years  afterwards,  there  ap- 
pears some  erasure  or  interlineation  on  the  sheriff's 
return,  is  not  sufficient  to  nullify  the  return,  in  the  ab- 
sence of  a  direct  attack  upon  it  for  fraud,  or  forgery, 
or  alteration.      (Gregor)^  e-.  Ford,  14  Cal.  138.) 


§  22 
§  23 
§  24 
§  25 
§  26 
§27 
§  28 
§  29 

§  30 
§31 
§32 
§33 
§  34 
§  35 


CHAPTER  II. 

ARREST  AND  BAIL. 

Imprisonment  for  Debt. 

Arrest  for  Fraud. 

The  Order  of  Arrest. 

Temporary  Exemption  from  Arrest. 

Void  Order  of  Arrest. 

Service  of  Order  of  Arrest. 

Sheriff's  Expenses. 

When  Defendant  may  be  discharged. 

.Surrender  of  Defendant. 

LiabiUty  of  Sheriff  and  Sureties. 

Exception  to  Sureties. 

Justification  of  Sureties. 

Deposit  of  Bail  Mone}^ 

Sheriff  Liable  for  Escape. 

Discharge  Final. 


§  2  2.  Imprisonment  for  Debt. — No  person  can 
be  imprisoned  for  debt  in  any  civil  action,  on  mesne,  or 
final  process,  except  in  cases  of  fraud. 

§  23.  Arrest  for  Fraud. — But,  under  the  code, 
(See  Arrest  and  Bail,  C.  C.  P.)  the  defendant  in  a 
civil  action,  after  suit  has  been  commenced,  may  be 
arrested  in  the  following  cases:  i.  In  an  action  for 
the  recovery  of  money  or  damages  on  a  cause  of 
action  arising  upon  contract,  express  or  implied,  when 
the  defendant  is  about  to  depart  from  the  State  with 


§   24  ARREST  AND  BAIL.  34 

intent  to  defraud  his  creditors;  2.  In  an  action  for  a 
fine  or  penalty,  or  for  money  or  property  embezzled, 
or  fraudulently  misapplied,  or  converted  to  his  own 
use,  by  a  public  officer,  or  an  officer  of  a  corporation, 
or  an  attorney,  factor,  broker,  agent,  or  clerk,  in  the 
course  of  his  employment  as  such,  or  by  any  other 
person  in  a  fiduciary  capacity  ;  or  for  misconduct  or  ne- 
glect in  office  or  in  a  professional  employment,  or  for 
a  willful  violation  of  duty;  3.  In  an  action  to  recover 
the  possession  of  personal  property  unjustly  detained, 
when  the  property,  or  any  part  thereof,  has  been  con- 
cealed, removed,  or  disposed  of,  to  prevent  its  being 
found  or  taken  by  the  sheriff;  4.  When  the  defendant 
has  been  guilty  of  a  fraud  in  contracting  the  debt  or 
incurring  the  obligation  for  which  the  action  is  brought ; 
or  in  concealing  or  disposing  of  the  property  for  the 
takine,  detention,  or  conversion  of  which  the  action  is 
brought;  5.  When  the  defendant  has  removed  or 
disposed  of  his  property,  or  is  about  to  do  so,  with 
intent  to  defraud  his  creditors. 

§  24.  The  Order  of  Arrest. — To  entitle  the  party 
to  the  remedy  of  arrest,  it  is  not  necessary  that  he 
should  know  the  commission  of  a  fraud.  It  is  suf- 
ficient, if  the  circumstances  detailed  would  induce  a 
reasonable  belief  that  a  fraud  was  intended,  ( South- 
worth  V.  Resing,  3  Cal.  :^']^^  The  order  for  the 
arrest  must  be  obtained  from  the  judge  of  the  court 
in  which  the  action  is  brought  (§  480,  C.  C.  P.),  and 
is  made  upon  the  affidavit  of  the  plaintiff  or  some 
other  person ;  and  must  require  the  sheriff  of  the 
county  where  the  defendant  may  be  found  forthwith 
to  arrest  him  and  hold  him  to  bail  in  a  specified  sum. 
(§  483,  C.  C.  P.) 


35  arrp:st  and  I5ail,  §§  25,  26 

§  25.  Temporary  Exemptions  from  Arrest. — 
The  constitution  of  this  State  provides  that  electors 
shall  in  all  cases,  except  treason,  felony,  or  breach  of 
the  peace,  be  privileged  from  arrest  on  the  days  of 
election,  during  their  attendance  at  such  election, 
going  to  and  returning  therefrom :  and  that  members 
of  the  legislature  shall,  in  all  cases,  except  treason, 
felony  and  breach  of  the  peace,  be  privileged  from 
arrest,  and  shall  not  be  subject  to  any  civil  process 
during  the  session  of  the  legislature,  nor  for  fifteen 
days  next  before  the  commencement  and  after  the 
termination  of  each  session.  No  person  belonmno- 
to  the  military  forces  is  subject  to  arrest  on  civil  pro- 
cess while  s^oing-  to.  remaininor  at,  or  returning  from, 
any  place  at  which  he  may  be  required  to  attend  for 
military  duty.  Section  2067  of  the  Code  of  Civil 
Procedure  provides  that  every  person  who  has  been, 
in  good  faith,  served  with  a  subpoena  to  attend  as  a 
witness  before  a  court,  judge,  commissioner,  referee, 
or  other  person,  in  a  case  where  the  disobedience  of 
the  witness  may  be  punished  as  a  contempt,  is  exoner- 
ated from  arrest  in  a  civil  action  while  eoine  to  the 
place  of  attendance,  necessarily  remaining  there  and 
returning  therefrom. 

§  26.  Void  Order  of  Arrest. — Where  the  com- 
plaint was  not  filed  until  two  days  after  an  order  of 
arrest  had  issued  thereon,  it  was  held,  in  ex-parte 
Cohen,  6  Cal.  318,  that  the  order  of  arrest  was  void. 
A  fraud  merely  constructive,  not  involving  moral  guilt, 
is  not  ground  of  arrest.  A  partner  is  not  liable  to  ar- 
rest on  the  ground  of  fraud  committed  by  his  co-part- 
ners in  contracting  the  partnership  debt  on  which  the 
action  is  brought,  in  the  absence  of  proof  that  he  knew 


§§   2/,    2  8  ARREST  AND  BAIL.  36 

of  sLicli  fraud,  or  that  he  in  some  way  ratified  the  trans- 
action. But  an  officer  is  not  presumed  to  know  the 
nature  of  the  evidence  rehed  upon  by  the  plaintiff  to 
prove  his  case ;  it  is  sufficient  for  him  to  know  that  the 
process  is  regular  on  its  face,  to  warrant  him  in  serv- 
ing- it.  Whatever  may  be  the  defect  in  the  affidavit 
upon  which  the  order  of  arrest  is  issued,  the  order 
itself,  if  regular  on  its  face,  will  protect  the  officer  in 
executing  it.  It  was  so  held  in  Dusy  v.  Helm,  59 
Cal.  189,  and  section  4187  of  the  Political  Code  was 
cited  by  the  court  as  statutory  authority  for  the  de- 
cision, 

§  27.  Service  of  Order  of  Arrest. — Upon  receipt 
of  the  order  of  arrest,  with  a  copy  of  the  affidavit,  upon 
which  it  is  made,  the  sheriff  must  arrest  the  defendant 
and  keep  him  in  custody  until  discharged  by  law.  On 
making  the  arrest,  the  officer  must  deliver  to  the  de- 
fendant a  copy  of  the  affidavit,  and  also,  if  he  desire  it, 
a  copy  of  the  order  of  arrest.      (§  484,  C.  C.  P.) 

§  28.  Sheriff's  Expenses. — Section  161 2  of  the 
Penal  Code  provides  that  whenever  a  person  is  com- 
mitted upon  process  in  a  civil  action  or  proceeding, 
except  when  the  people  of  this  State  are  a  party  there- 
to, the  sheriff  is  not  bound  to  receive  such  person, 
unless  security  is  given  on  the  part  of  the  party  at 
whose  instance  the  process  is  issued,  by  a  deposit  of 
money,  to  meet  the  expenses  for  him  of  necessary  food, 
clothing,  and  bedding,  or  to  detain  such  person  any 
longer  than  these  expenses  are  provided  for.  This  sec- 
tion does  not  apply  to  cases  where  a  party  is  committed 
as  a  punishment  for  disobedience  to  the  mandates,  pro- 
cess, writs,  or  order  of  court. 


37  ARREST  AND  P.AIL.  §   29 

If  a  judgment  is  rendered  against  a  defendant  in  a 
civil  action,  convictincr  him  of  fraud,  and  he  is  im- 
prisoned  on  an  execution  issued  thereon,  the  faihire  of 
the  plaintiff  to  make  a  weekly  advance  to  the  jailor,  of 
money  sufficient  for  the  support  of  the  prisoner,  does 
not,  per  se,  operate  a  discharge  of  the  defendant.  If 
the  prisoner  is  adequately  supported  by  the  jailor,  and 
the  latter  is  willing  to  trust  the  creditor  for  reimburse- 
ment, the  purpose  of  the  statute  is  satisfied.  (Bx- 
partc  Lamson,    50  Cal.  306.) 

Section  eleven  hundred  and  fift)'-four  of  the  Code  of 
Civil  Procedure  provides  that  whenever  a  person  is 
committed  to  jail  on  an  execution  issued  on  a  judgment 
recovered  in  a  civil  action,  the  creditor,  his  agent  or 
attorney,  must  advance  to  the  jailor,  on  such  commit- 
ment, sufficient  money  for  the  support  of  the  prisoner 
for  one  week,  and  must  make  the  like  advance  for 
every  successive  week  of  his  imprisonment,  and  in 
case  of  failure  to  do  so,  the  jailor  must  forthwith 
discharge  such  prisoner  from  custody;  and  such  dis- 
charge has  the  same  effect  as  if  made  by  order  of  the 
creditor. 

§  29.  When  Defendant  may  be  Discharged. 
— The  sheriff  may  discharge  the  defendant  at  any  time 
upon  written  instructions  to  that  effect,  signed  by  the 
plaintiff.  And,  the  defendant,  at  any  time  before 
execution,  must  be  dischartred  from  the  arrest,  either 
upon  giving  bail,  as  required  in  section  487  of  the 
Code  of  Civil  Procedure,  or  upon  depositing  the 
amount  mentioned  in  the  order  of  arrest.  A  party 
will  be  discharged  from  arrest  where  the  process, 
though  proper  in  form,  has  been  issued  in  an  improper 
case.      (Soule  v.  Hay  ward,  i  Cal.  345.) 


§§  30.  31  ARREST  AND  BAIL.  38 

§  30.  Surrender  of  Defendant. — At  any  time 
before  judgment,  or  within  ten  days  thereafter,  the 
bail  may  surrender  the  defendant  in  their  exoneration  ; 
or  he  may  surrender  himself  to  the  sheriff  of  the 
county  where  he  was  arrested.  (§  488,  C.  C.  P.)  For 
the  purpose  of  surrendering  the  defendant,  the  bail,  at 
any  time  or  place  before  they  are  finally  charged,  may 
themselves  arrest,  or,  by  a  written  authority  indorsed 
on  a  certified  copy  of  the  undertaking,  may  empower 
the  sheriff  to  do  so.  (§  489,  C.  C.  P.)  A  certified 
copy  of  the  undertaking  may  be  obtained  from  the 
clerk  of  the  court  in  which  the  action  is  brought. 

§  31.  Liability  of  Sheriff  and  Sureties. — Wliere 
a  defendant  has  been  allowed  to  q-q  at  lar^e  on  bail, 
and  an  attempt  is  made  to  surrender  him,  either  by 
himself  or  by  his  sureties,  the  officer  should  take  heed 
lest  he  make  himself  liable  to  the  plaintiff  by  receiving 
the  defendant  into  custody  and  thereby  exonerate  the 
sureties.  In  the  case  of  Allen  e'.  Breslauer  e^  a/.,  8 
Cal.  552,  in  an  action  on  a  bail  bond  executed  by  the 
defendants  as  sureties  for  one  Pinover,  the  plaintiff 
obtained  judgment  against  Pinover.  There  was  no 
surrender  of  defendant,  nor  any  execution  issued 
within  ten  days  after  judgment.  After  the  expiration 
of  ten  days,  an  execution  was  issued  against  the  body 
of  Pinover,  and  placed  in  the  hands  of  the  sheriff. 
On  the  same  day  Pinover  called  on  the  sheriff,  and 
offered  to  surrender  himself  in  discharcre  of  his  sure- 
ties.  But  the  sheriff,  acting  under  plaintiff's  instruc- 
tions, refused  to  take  him  into  custody.  Afterwards, 
defendants  went  with  Pinover  to  the  sheriff,  for  the 
purpose  of  giving  him  in  custody,  when  he  refused 
to  receive   him.     The  court  below  entered  judgment 


ARREST  AND  BAIL 


for   plaintiff,   but,   on    appeal,    the  judgment    was   re- 
versed. 

The  appellants  urged  that  "the  plaintiff  should  have 
proved  that  execution  was  issued  and  returned  fion  est, 
the  only  obligation  of  the  sureties  being  that  the  de- 
fendant should  at  all  times  render  himself  amenable  to 
the  process  of  the  court,  during  the  pendency  of  the 
action,  and  to  such  as  may  be  issued,  to  enforce  the 
judgment  therein."  In  the  case  of  Matoon  v.  Eder,  the 
court  discussed  ver)-  thoroughly  the  apparent  contra- 
dictions and  hardships  of  the  statute,  but  as.  that  case 
was  decided  upon  other  grounds,  came  to  no  setded 
determination  on  this  point.  If  the  views  suggested  in 
that  case  prevail,  we  suggest  that  the  presence  of  the 
defendant,  open  and  notorious,  at  the  place  where 
process  should  issue,  ought  to  be  deemed  a  surrender 
under  the  eighty-second  section.  What  other  sur- 
render could  be  made?  The  sheriff"  would  not  be  au- 
thorized to  receive  him,  having  no  process  in  his  hands. 
If,  however,  we  are  wrong  in  the  last  points,  we  sub- 
mit that  the  proof  on  the  part  of  the  defense  made  out 
a  complete  defense.  The  plaintiff,  after  the  expiration 
of  ten  days,  did  issue  an  execution  against  the  body  of 
the  defendant,  whereupon  the  defendant  surrendered 
himself  to  the  sheriff,  but  the  sheriff  refused  to  receive 
him.  If  the  plaintiff  elected  to  look  to  the  bail-bond 
after  the  ten  days  had  expired,  he  should  not  have 
issued  an  execution.  The  issuing  of  an  execution  w^as 
an  election  to  still  pursue  the  defendant,  and  the  sur- 
render of  the  defendant  to  the  sheriff  was  a  compliance 
with  the  conditions  of  the  bail-bond,  the  plaintiff  having, 
by  suing  out  the  execution,  waived  the  technical  for- 
feiture. To  permit  the  plaintiff  to  sue  out  the  execu- 
tion,  which,   in  terms,   commanded  the  sheriff  to  take 


§   31  ARREST  AND   HATL.  4O 

the  body  of  the  defendant,  and  then,  by  verbal  dh-ec- 
tion,  to  command  him  not  to  obey  the  writ,  would  be 
sanctioning  a  proceeding  which  the  court  would  not 
willingly  endure.  Now,  suppose  the  sheriff  had  taken 
the  defendant  in  execution,  would  not  the  undertaking- 
have  been  satisfied,  and  the  sureties  discharged  ?  If 
so,  then  why  should  not  the  surrender  of  the  defend- 
ant have  the  same  effect  ? 

It  was  urged  by  the  respondent  that  "no  surrender 
having  been  made  of  the  defendant,  Pinover,  either  by 
himself  or  by  his  bail,  in  their  exoneration,  they,  the 
defendants  in  this  acdon,  became  finally  charged,  under 
secdons  eighty-two  and  eighty-three  of  the  Practice 
Act,  to  pay  the  amount  of  the  judgment.  This  action 
was  brought,  and  the  judgment  herein  recovered,  under 
the  law  contained  in  the  two  foregoing  secdons,  and 
the  construction  given  thereto  by  the  court,  in  the  case 
of  Matoon  et  al  v.  Eder  et  al.  It  is  true  that  an  exe- 
cution was  issued,  but  better  judgment  gave  direction 
that  no  action  should  be  taken  thereunder.  It  was  un- 
advisably  issued,  but  judiciously  arrested,  before  any 
action  had  been  taken  under  it.  (See  Cains  v.  Smith, 
8  Johnson,  y::^" .)  There  was  no  obligation  on  the 
part  of  the  plaindff  to  arrest  a  quasi  criminal  on  final 
process  in  that  acdon,  pardcularly  as  the  practical  ef- 
fect of  doing  so  would  have  been  to  release  the  bail  and 
to  furnish  the  defendant  Pinover  with  an  asylum  in  a 
debtor's  prison  at  the  plaintiff's  expense,  undl  he 
would  have  been  discharged  under  the  provisions  of 
the  statute  of  a.  d.  1850.  Had  the  sheriff,  without  the 
consent  of  the  plaintiff,  accepted  the  offers  of  the  de- 
fendant and  the  suredes  to  surrender  Pinover,  after 
the  bail  had  been  finally  charged,  he  would  have  there- 
by   rendered    himself   liable    to    the    plaindff   for  the 


41  ARREST  AND  BAIL.  §   32 

amount  of  the  judgment  and  costs.  This  is  not  a  hard 
case  on  the  appellants.  The  act  to  bail  Pinover  at  a 
time  when  they  considered  him  innocent,  was  volun- 
tary on  their  part ;  and  they  should  have  been  admon- 
ished, by  his  convictions  of  fraud,  of  his  unworthiness 
of  the  succor  which  they  had  extended  to  him,  and 
should  then  have  surrendered  him  in  their  exoner- 
ation." 

The  opinion  of  the  court  is  as  follows :  "The  ques- 
tion presented  is,  whether,  under  this  state  of  facts, 
defendants  are  liable.  We  think  not.  The  legis- 
lature, when  providing  for  the  surrender  of  defendant 
within  ten  days  after  judgment,  evidendy  contemplated 
that  the  plaintifl"  should  take  such  measures  as  would 
authorize  the  officer  to  hold  defendant  in  custody. 
'The  law  requires  no  man  to  do  a  vain  thing,'  is  a 
familiar  maxim,  and  certainly  it  would  be  in  vain  to  re- 
quire a  party  to  surrender  to  an  officer  having  no 
power  to  detain  him.  The  construcdon  contended  for 
by  plaindff,  would  enable  a  defendant  to  release  his 
sureties  by  a  surrender  before  execution,  and  then  at 
once  be  released  on  habeas  corpus,  on  the  ground 
that  he  was  illegally  in  custody.  Such  a  result  was 
never  intended  by  the  legislature,  and  we  are  of 
opinion  that  a  surrender  within  ten  days  after  exe- 
cution is  a  sufficient  compliance  with  the  will  of  the 
legislature." 

§  32.  Exception  to  Sureties. — Within  the  dme 
limited  for  that  purpose,  the  sheriff  must  file  the  order 
of  arrest  with  the  clerk,  with  his  return,  together  with 
a  copy  of  the  undertaking.  The  original  undertaking 
he  must  retain,  until  the  sureties  jusdfy.  if  they  are 
required    to    do    so.      The   plaintiff,   within    ten    days 


§§  33-35  ARREST  AND  BAIL.  42 

thereafter,  may  serve  upon  the  sheriff  a  notice  that  he 
does  not  accept  the  bail,  or  he  is  deemed  to  have 
accepted  them,  and  the  sheriff  is  exonerated  from  ha- 
bility.  If  no  notice  be  served  within  ten  days,  the 
oricrinal  undertaking^  must  be  filed  with  the  clerk  of 
the  court.     (§  492,  C.  C.  P.) 

§  33-  Justification  of  Sureties. — Within  five  days 
after  the  receipt  of  notice,  the  sheriff  or  defendant 
may  give  to  the  plaintiff,  or  his  attorney,  notice  of  the 
justification  of  the  same,  or  other  bail  (specifying-  the 
places  of  residence  and  occupations  of  the  latter), 
before  a  judge  of  the  court,  or  county  clerk,  at  a 
specified  time  and  place ;  the  time  to  be  not  less  than 
five  nor  more  than  ten  days  thereafter,  except  by  con- 
sent of  parties.  In  case  other  bail  be  given,  there  must 
be  a  new  undertaking.  (  §  493,  C.  C.  P.)  If  the  bail 
is  found  to  be  sufficient,  the  sheriff  is  thereupon  ex- 
onerated from  liability. 

§  34.  Deposit  of  Bail  Money. — In  case  the 
amount  of  bail  be  reduced,  the  defendant  may  deposit 
such  amount  instead  of  giving  bail.  When  money  is 
deposited,  the  sheriff  must  give  the  defendant  a  certi- 
ficate of  the  deposit  made,  discharge  the  defendant 
from  custody,  immediately  pay  the  deposit  into  court, 
and  take  from  the  clerk  receiving  the  same  two  certi- 
ficates of  such  payment,  the  one  of  which  he  shall 
deliver  to  the  plaintiff's  attorney,  and  the  other  to  the 
defendant.      (See  Arrest  and  Bail,  C.  C.  P.) 

§  35.  Sheriff  Liable  for  Escape. — If,  after  being 
arrested,  the  defendant  escape  or  is  rescued,  the 
sheriff  is  liable  as  bail ;  but  he  may  discharge  himself 


43  ARREST  AND  BAIL.  §  36 

from  such  liability  by  the  giving  bail  at  any  time  before 
judgment.     (§  501,  C.  C.  P.) 

§  36.  Discharge  Final. — Where  a  party  is  once 
arrested  and  discharged,  he  cannot  be  arrested  again 
in  the  same  action.  (McGilvery  z>.  Moorhead,  2  Cal. 
609.) 


CHAPTER   III. 


CLAIM    AND    DELIVERY 


§37 

§38 
§39 
§  40 
§41 
§42 
§43 
§  44 
§45 
§46 
^47 
§48 
§49 
§  50 
§51 


Affidavit  and  Order  to  Sheriff. 

Taking-  the  Property. 

Who  cannot  Maintain  Replevin. 

What  is  not  a  Particular  Description  of  Property, 

Care  of  Property  in  Replevin. 

Justification  and  Retaking  Property. 

Officer  Responsible  until  Sureties  Justify. 

Notice  of  Justification. 

How  Property  Taken  when  Concealed. 

Claim  by  Third  Person. 

Sheriff  Liable  for  Taking  Property  of  Stranger. 

Indemnity  Bonds. 

Correction  of  Valuation  of  Property. 

Property  Lost  through  Act  of  God. 

Attachment  Lien  in  Replevin. 


^  ^y.  Affidavit  and  Order  to  Sheriff. — The  du- 
ties of  sheriffs  and  constables  in  taking,  keeping,  and 
deHvering  property  in  replevin  are  laid  down  in  chap- 
ter two,  tide  seven,  part  two,  of  the  Code  of  Civil 
Procedure.  The  papers  requisite  to  authorize  the 
officer  are:  An  affidavit  made  by  the  plaintiff  or  some 
one  in  his  behalf  showing  that  the  plaintiff  is  the  owner 
of  the  property  claimed  (particularly  describing  it),  or 
is  entitled  to  the  possession  thereof;  that  the  property 
is  wrongfully  detained  by  the  defendant ;  the  alleged 
cause    of    detention    thereof,    according    to    his    best 


45  CLAIM  AND  DELIVERY.  §  38 

knowledge,  information,  and  belief;  diat  it  has  not 
been  taken  for  a  tax,  assessment,  or  fine,  pursuant  to 
a  statute,  or  seized  under  an  execution  or  an  attach- 
ment against  the  property  of  the  plaintiff,  or  if  so 
seized,  that  it  is  by  statute  exempt  from  such  seizure ; 
the  actual  value  of  the  property.  (§  510.  C.  C.  P.) 
The  affidavit  must  have  an  indorsement  thereon,  in 
writing,  b)'  the  plaintiff  or  his  attorney,  requiring 
the  officer  to  take  the  property  from  the  defendant. 
(§  511,  C.  C.  P.)  Besides  the  affidavit  and  nodce  re- 
ferred to,  there  must  be  furnished  to  the  officer  a 
written  undertaking  executed  by  two  or  more  suf- 
ficient sureties  to  the  effect  that  they  are  bound  to  the 
defendant  in  double  the  value  of  the  property,  as 
stated  in  the  affidavit,  for  the  return  of  the  property  to 
the  defendant,  if  return  thereof  be  adjudged,  and  for 
the  payment  to  him  of  such  sum  as  may,  from  any 
cause,  be  recovered  against  the  plaintiff 

§  38.  Taking  the  Property. — Upon  receipt  of 
the  affidavit  and  nodce  and  undertaking,  the  officer 
must  indorse  upon  them  the  exact  time  of  receipt,  and 
sign  his  approval  of  the  undertaking,  and  prepare  a 
copy  of  each  for  service.  No  unnecessary^  time  should 
then  be  lost  in  taking  the  property.  If  no  property 
can  be  found,  the  officer  runs  no  risk;  while,  on  the 
other  hand,  if  the  property  be  taken,  it  need  not  be 
delivered  to  the  plaintiff  until  the  suredes  on  the 
undertaking  shall  have  justified. 

The  sheriff  must  forthwith  take  the  property  describ- 
ed in  the  affidavit,  if  it  be  in  the  possession  of  the 
defendant  or  his  agent,  and  retain  it  in  his  custody, 
(§512,  C.  C.  p.) 

If  the  propert}-'  is  in  the  possession  of  any  person 


§  39  CLAIM  AND  DELIVERY.  46 

Other  than  the  defendant  or  his  agent,  the  officer  will 
not  be  justified  in  taking  it. 

He  must,  without  delay,  serve  upon  the  defendant 
a  copy  of  the  affidavit,  notice  and  undertaking,  by 
delivering  the  same  to  him,  personally,  if  he  can  be 
found,  or  to  his  agent  from  whose  possession  the  prop- 
erty is  taken,  or  if  neither  can  be  found,  by  leaving 
them  at  the  usual  place  of  abode  of  either,  with  some 
person  of  suitable  age  and  discretion,  or  if  neither  have 
any  known  place  of  abode,  by  putting  them  in  the 
nearest  post-office,  directed  to  the  defendant.  (§  512, 
C.  C.  P.) 


o^ 


\g.  Who  cannot  Maintain  Replevin. — One 
partner  cannot  sustain  an  action  against  his  co-partner 
for  the  delivery  of  personal  property  belonging  to  the 
partnership.  (Buckley  z'.  Carlisle,  2  Cal.  420.)  Nor 
can  the  true  owner  maintain  replevin  for  crops  raised  on 
his  land  by  others  who  are  holding  the  possession  ot 
the  land  adversely  to  him.  (Pennybecker  z>.  McDou- 
gal,  46  Cal.  662.) 

Replevin  only  lies  for  the  recovery  of  specific  per- 
sonal property.  Property  which  has  not  been  set 
apart  from  the  mass  in  which  it  is  included  is  not 
specific  property,  and  cannot  be  reached  by  an  action 
of  replevin.  Just  what  will  constitute  a  segregation 
must  depend  upon  circumstances. 

A  safe  in  the  possession  of  Mc  C.  belonging  to  W., 
F.  &  Co.,  for  whom,  as  also  for  plaintiff,  he  was  agent, 
contained  six  thousand  dollars  in  coin.  Of  this  sum, 
four  hundred  dollars  belonged  to  W.,  F.  &  Co.,  the 
balance  to  plaintiff.  Defendant,  as  sheriff,  under  a 
writ  against  McC.  seized  eighteen  hundred  dollars  of 
the  money  in  the  safe  as  his  property,  and  put  it  in  a 


47  CLAIM  AND  DELIVERY.  §§  4O-42 

bag.  Plaintiff  then  claimed  the  money  as  his,  McC. 
being  present  and  not  objecting:  Held,  that  this 
amounted  to  a  segregation  of  the  eighteen  hundred 
dollars  from  the  mass  of  coin  in  the  safe,  so  as  to 
sustain  replevin  by  plaintiff.  (Griffith  v.  Bogardus,  14 
Cal.  410.) 

§  40.  What  is  not  a  Particular  Description 
of  Property. — In  replevin,  where  the  judgment  for 
the  plaintiff  describes  the  property  to  be  restored  as 
"buckwheat,  valued  at  three  hundred  and  sixty-five 
dollars  and  seventy-five  cents,"  the  description  is 
insufficient  to  sustain  the  judgment,  unless  the  judg- 
ment refer  for  a  fuller  description  to  the  complaint, 
and  there  is  a  more  definite  description  in  the  com- 
plaint.     (Welch  V.  Smith,  45  Cal.  230.) 

§  41.  Care  of  Property  in  Replevin.  —  The 
possession  obtained  by  plaintiff  in  replevin  is  only 
temporary.  It  does  not  divest  the  title,  or  discharge 
the  lien.  (Hunt  v.  Robinson,  1 1  Cal.  262.)  When 
the  property  is  taken  by  the  officer  he  must  exercise 
the  same  care  in  keeping  it  as  in  holding  property 
under  attachment,  and  deliver  it  to  the  party  entitled 
thereto,  upon  receiving  his  fees  for  taking  and  his 
necessary  expenses  for  keeping  the  same.  (§  518, 
C.  C.  P.) 

§  42.     Justification  and  Re-taking  Property. — 

After  the  sheriff  has  taken  property,  the  defendant  ma)', 
within  two  days  after  the  service  of  a  copy  of  the  affi- 
davit and  undertaking,  give  notice  to  the  sheriff  that  he 
excepts  to  the  sufficiency  of  the  sureties.  If  he  fails  to 
do  so,  he  is  deemed   to   have  waived   all   objection  to 


§  42  CLAIM  AND  UELIVERV.  48 

them.  When  the  defendant  excepts,  the  sureties  must 
justify  on  notice  in  hke  manner  as  upon  bail  on  arrest, 
(see  chapter  one,  title  seven,  C.  C.  P.);  and  the  sheriff 
is  responsible  for  the  sufficiency  of  the  sureties  until 
the  objection  to  them  is  either  waived  or  until  they  just- 
ify. If  the  defendant  excepts  to  the  sureties,  he  cannot 
retake  the  property  as  provided  in  section  five  hundred 
and  fourteen,  which  reads  as  follows: 

"At  any  time  before  the  delivery'  of  the  property  to 
the  plaintiff,  the  defendant  may,  if  he  do  not  except  to 
the  sureties  of  the  plaintiff,  require  the  return  thereof, 
upon  giving  to  the  sheriff  a  written  undertaking,  execut- 
ed by  two  or  more  sufficient  sureties,  to  the  effect  that 
they  are  bound  in  double  the  value  of  the  property,  as 
stated  in  the  affidavit  of  the  plaintiff,  for  the  delivery 
thereof  to  the  plaintiff,  if  such  delivery^  be  adjudged, 
and  for  the  payment  to  him  of  such  sum  as  may,  for 
any  cause  be  recovered  against  the  defendant.  If  a 
return  of  the  propert}^  be  not  so  required  within  five  days 
after  the  taking  and  service  of  notice  to  the  defendant, 
it  must  be  delivered  to  the  plaintiff,  unless  it  be  claimed 
by  a  third  person."      (See  §§514  and  519  C.  C.  P.) 

In  the  case  of  Fleming  v.  Wells,  opinion  filed  in 
department  one  of  the  supreme  court,  June  17,  i884> 
an  appeal  from  a  judgment  on  the  pleadings,  for  a 
delivery  to  plaintiff  of  the  property  mentioned  in  the  ' 
complaint,  or  in  case  a  delivery  could  not  be  had,  for 
its  value,  damages  for  detention,  costs,  etc.,  the  court 
say: 

"The  answer  avers  facts,  fully  and  at  large  set  forth, 
from  which  it  appears  that  prior  to  the  commencement 
of  the  present  action,  one  Hawley  commenced  an  ac- 
tion against  the  plaintiff  herein  and  one  Fowler,  to  re- 
cover the  identical  property  described  in  the  complaint 


49  CLAIM  AND  DELIVERY.  §  42 

herein.  That  in  that  action,  upon  proper  affidavit,  un- 
dertaking and  order  of  the  attorney  for  plaintiff  there- 
in (which  were  forthwith  served  on  the  defendants 
therein)  the  present  defendant,  as  sheriff,  took  said 
property  from  the  defendants  on  the  12th  day  Novem- 
ber, 1 88 1.  That  on  the  17th  day  of  the  same  Novem- 
ber (the  day  after  the  present  action  was  commenced) 
the  plaintiff  herein  made  affidavit  for  claim  and  deli- 
very and  executed  bond,  which  affidavit  and  bond  (to- 
gether with  an  order  of  the  attorneys  for  plaintiff  here- 
in) were  delivered  to  an  elisor,  appointed  by  the  court, 
by  whom  the  property  was  taken  from  the  defendant 
herein,  sheriff  as  aforesaid.  That  afterwards  on  the 
2 2d  of  November,  1881,  defendant  gave  the  under- 
taking provided  for  in  such  case  by  the  code,  and  de- 
manded a  return  of  the  property  of  the  elisor,  who  on 
the  same  day  delivered  the  property  to  the  present  de- 
fendant. That  defendant,  sheriff,  thereupon  delivered 
the  property  to  Hawley,  the  plaintiff  in  the  action  where- 
in plaintiff  and  Fowler  were  defendants.  That  after- 
wards, on  the  1 2th  day  of  December,  1881,  the  plain- 
tiff herein  filed  an  answer  in  the  action,  wherein  he 
and  said  Fowler  were  defendants,  in  which  he  de- 
manded a  return  of  the  property,  therein  and  herein 
sued  for.  That  the  action  Hawley  v.  Fowler  and 
Fleming  came  on  to  be  tried  on  the  21st  day  of  Janu- 
ary, 1882,  and  at  the  conclusion  of  the  evidence  on  the 
part  of  the  plaintiff  therein,  the  court,  on  motion  of  de- 
fendants, ordered  a  judgment  oi  no7tsiiit\n  that  action, 
on  the  ground  that  plaintiff  had  not  made  out  a  case 
sufficient  to  go  to  a  jury,  and  thereupon  a  judgment 
was  entered  in  favor  of  defendants  therein  for  their 
costs. 

"The  court  below  held  that  the  facts  set  forth  in  the 


§  42  CLAIM  AND  DELIVERY.  5O 

answer  constituted   no  defense  to  the  present  action. 

"For  the  purposes  of  the  judgment  on  the  plead- 
ings the  averments  of  the  answer  must  be  treated 
as  true. 

"Certainly  the  defendant  here  did  not  take  the  pro- 
perty from  the  plaintiff  ^c'r^?^;^///)',  but  as  sheriff  under 
process  which  made  it  his  duty  to  take  it. 

"Before  the  expiration  of  five  days,  at  the  expiration 
of  which  it  would  have  become  the  duty  of  the  sheriff, 
(defendant  herein)  to  deliver  the  property  to  Hawley, 
the  present  action  was  commenced  and  the  property 
taken  by  the  eliso7\  When  the  property  was  returned 
to  the  sheriff,  on  his  giving  bond,  etc.,  he  did  what 
was  his  plain  duty  to  do,  deliver  it  to  Hawley. 

"The  present  plaintiff  did  not  give  the  bond  provided 
for  in  section  514  of  the  Code  of  Civil  Procedure,  which 
alone  would  have  authorized  him  to  demand  a  return 
of  the  property  taken  by  the  sheriff,  but,  instead  of 
executing  and  tendering  the  bond,  commenced  this  in- 
dependent action  against  the  officer.  As  we  have  said 
no  right  of  action  for  a  recovery  of  the  property  from 
the  sheriff  existed  in  favor  of  the  plaintiff  when  the 
present  suit  \vas  begun. 

"Nor  was  the  sheriff  permanently  relieved  of  the  duty 
of  delivering  the  property  to  Hawley,  by  the  circum- 
stance that  it  was  taken  out  of  his  possession  by  the 
elisor.  As  soon  as  it  was  returned  to  him  the  duty 
attached  of  delivering  it  to  Hawley,  plaintiff  in  the 
action,  at  w^hose  instance  it  had  been  taken  by  the 
sheriff.  This  duty  he  performed.  Even  if  the  judg- 
ment of  nonsuit  could  be  construed  to  be  a  judgment 
that  defendants  were  entitled  to  a  return  of  the  pro- 
perty by  Hawley,  the  judgment  in  the  present  suit 
could  not  be  upheld.     Prior   to   the    rendition    of  the 


5  I  CLAIM  AND  DELIVERY.  §  42 

judgment  of  nonsuit,  the  present  defendant,  in  strict 
accordance  with  his  duty  as  sheriff,  had  dehvered  the 
property  to  Hawley,  and  the  judgment  (construed  as 
a  judgment  for  a  return),  required  Hawley,  and  not 
the  present  defendant,  to  return  the  property  or  pay 
its  value,  in  case  return  could  not  be  had.  As  the 
sheriff  rightfully  took  the  property  from  the  present 
plaintiff,  and  simply  discharged  his  duty  in  delivering 
it  to  Hawley,  he  cannot  be  held  liable  for  the  property, 
or  its  value  and  damages,  at  the  suit  of  the  present 
plaintiff 

"It  may  be  added  that,  in  the  action  brought  by  Haw- 
ley, the  defendants  did  not  recover  a  judgment  for  a 
return  of  the  property  by  the  plaintiff  therein  or  its 
value.  The  defendants  in  that  action  asked  for  a  non- 
suit and  got  what  they  asked  for.  If  under  the  cir- 
cumstances they  could  complain  of  the  judgment,  be- 
cause it  did  not  provide  for  a  return,  etc.,  the  remedy 
was  to  be  sought  in  that  action,  in  the  superior  court, 
or  by  appeal. 

"Even  if  it  could  be  held  that  a  judgment  might  pro- 
perly be  entered  against  the  present  defendant  if  he 
came  wrongfully  into  possession  of  the  property  after 
the  action  was  brought,  although  his  possession  when 
the  action  was  commenced  was  rightful,  the  facts  do 
not  show  such  subsequent  wrongful  possession.  More- 
over, if  it  could  be  held,  that  in  case  a  judgment  for 
a  return  of  the  property  to  defendants  by  Hawley 
had  been  entered  in  the  action  brought  by  him,  it 
would  have  become  the  duty  of  the  sheriff  to  take  the 
property  from  Hawley  and  deliver  it  to  defendants 
therein  (and  that  it  was  a  duty  which  he  could  be  com- 
pelled to  perform  in  this  independent  action),  no  judg- 
ment was  in  fact  entered  in  the    action    brought  by 


§§  43-45  CLAIM  AND  DELIVERY.  $2 

Hawley  for  a  return  of  the  property  to  the  defendants 
in  that  action.     Judgment  reversed." 

§  43.  Officer  Responsible  until  Sureties  Just- 
ify.— If  the  defendant  elect  to  retake  the  property, 
the  officer  is  sdll  to  retain  it  undl  the  defendant's  sure- 
ties justify  ;  unless,  indeed,  he  is  willing  himself  to  take 
the  risk  of  such  justification.  The  effect  of  a  demand 
of  the  property  by  the  defendant  is  not  to  entide  the 
defendant  to  have  the  property  delivered  to  him,  but 
to  prevent  a  delivery  of  the  property  to  the  plaintiff. 
If  the  defendant  would  have  the  property  himself,  he 
must  proceed  to  have  his  sureties  justify.  The  prop- 
erty must  be  retained  by  the  officer  until  such  justifi- 
cation takes  place,  unless  the  officer  chooses  to  make 
himself  personally  responsible  that  the  sureties  shall 
justify.     (See  §  515,  C.  C.  P.) 

§  44.  Notice  of  Justification. — The  defendant's 
sureties,  upon  nodce  to  the  plaintiff  of  not  less  than 
two  and  not  more  than  five  days,  must  justify  belore 
a  judge  or  county  clerk,  in  the  same  manner  as  upon 
bail  on  arrest;  and  upon  such  jusdfication  the  sheriff 
must  deliver  the  property  to  the  defendant.  The 
sheriff  is  responsible  for  the  defendant's  sureties 
undl  they  jusdfy,  or  until  the  justification  is  completed 
or  waived,  and  may  retain  the  property  until  that  time ; 
if  they,  or  others  in  their  place  fail  to  jusdfy  at  the 
time  and  place  appointed,  he  must  deliver  the  property 
to  the  plaintiff.      (§  515,  C.  C.  P.) 

§  45.  How  Property  Taken  when  Concealed. 
— If  the  property,  or  any  part  thereof,  be  concealed 
in   a  building  or  inclosure,   the  sheriff  must  publicly 


53  CLAIM  AND  DELIVERY.  §§  46,   47 

demand  its  delivery ;  if  it  be  not  delivered,  he  must 
cause  the  building  or  inclosure  to  be  broken  open,  and 
take  the  property  into  his  possession ;  and,  if  neces- 
sary, he  may  call  to  his  aid  the  power  of  his  county. 
(§517,  C.  C  P.) 

§  46.     Claim  of  Property  by  Third  Person. — 

If  the  property  taken  be  claimed  by  any  other  person 
than  the  defendant  or  his  agent,  and  such  person  make 
affidavit  of  his  title  thereto,  or  right  to  the  possession 
thereof,  stating  the  grounds  of  such  title  or  right,  and 
serve  the  same  upon  the  sheriff,  the  sheriff  is  not  bound 
to  keep  the  property  or  deliver  it  to  the  plaintiff,  unless 
the  plaintiff,  on  demand  of  him  or  his  agent,  indemnify 
the  sheriff  against  such  claim,  by  an  undertaking,  by 
two  sufficient  sureties ;  and  no  claim  to  such  property 
by  any  other  person  than  the  defendant,  or  his  agent, 
is  valid  against  the  sheriff  unless  so  made.  (§  519, 
C.  C.  P.) 

The  action  of  replevin  cannot  be  maintained  under 
our  laws  against  a  sheriff  to  recover  the  possession  of 
personal  property  held  by  him  under  a  writ  of  replev- 
in, unless  a  claim  upon  him  for  such  property  has  been 
first  made  under  section  519,  Code  Civil  Procedure. 
But  when  a  third  party  claims  the  property,  the  officer 
should  demand  indemnity  at  once  from  the  plaintiff, 
for  he  can  no  more  take  the  property  of  a  stranger 
under  replevin  than  he  can  under  attachment  or  exe- 
cution, without  rendering  himself  liable. 

§  47.  Sheriff  Liable  for  Taking  Property  of 
Stranger. — Where  an  order  of  court  directed  the 
sheriff  to  seize  certain  specific  property,  and  this  prop- 
erty was  proved  not  to  belong  to  the  defendant  in  the 


§§  48,   49  CLAIM  AND  DELIVERY.  54 

suit,  the  sheriff  was  held  Hable  to  the  owner.  (Rhodes 
V.  Patterson,  3  Cal.  469.)  And  further,  that  the  owner 
of  property  has  his  remedy  and  the  right  of  recovery, 
against  any  one,  whether  sheriff  or  not.  unless  it  be 
held  by  legal  process  against  himself. 

In  the  case  of  Bacon  v.  Robson,  53  Cal.  399,  the 
court  held  that  in  an  action  to  recover  personal  property 
or  its  value,  where  it  appears  that  the  property  came 
lawfully  into  the  possession  of  the  defendant,  a  demand 
and  refusal  to  deliver  must  be  shown. 

§  48.  Bond  of  Indemnity  to  Sheriff. — If  in  a 
bond  to  indemnify  a  sheriff  for  replevying  property 
claimed  by  a  person  other  than  the  defendant  in  the 
writ,  the  obligors  undertake  to  indemnify  him  from 
any  damage  he  may  sustain  by  reason  of  any  costs, 
suits,  judgments,  and  executions  that  shall  come  or  be 
brought  against  him,  the  sheriff  cannot  maintain  an 
action  on  the  bond  because  a  judgment  has  been 
recovered  against  him,  but  must  first  pay  the  judg- 
ment.    (Lott  V.  Mitchell,  8  Cal.  23.) 

§  49.     Correction  of  Valuation  of  Property. — 

When,  in  an  action  to  recover  the  possession  of  personal 
property-,  the  person  making  any  affidavit  did  not 
truly  state  the  value  of  the  property,  and  the  officer 
taking  the  property,  or  the  sureties  on  any  bond  or 
undertaking,  is  sued  for  taking  the  same,  the  officer  or 
sureties  may  in  their  answer  set  up  the  true  value  of 
the  property,  and  that  the  person  in  whose  behalf  said 
affidavit  was  made  was  entided  to  the  possession  of 
the  same  when  said  affidavit  was  made,  or  that  the 
value  in  the  affidavit  stated  was  inserted  by  mistake, 
the  court  shall  disregard  the  value  as  stated  in  the 


55  CLAIM  AND  DELIVERY.  §50 

affidavit,  and  give  judgment  according  to  the  right  of 
possession  of  said  property  at  the  time  the  affidavit 
was  made.     ( §  473,  C.  C.  P.) 

§  50.     Property   Lost  through   Act  of   God. — 

It  is  no  defense  to  an  action  upon  a  replevin  bond  that 
the  property  v/as  lost  through  the  act  of  God.  By 
section  667  of  the  Code  of  Civil  Procedure,  it  is  pro- 
vided that,  "if  the  property  has  been  delivered  to  the 
plaintiff,  and  the  defendant  claims  a  return  thereof, 
judgment  for  the  defendant  may  be  for  a  return  of  the 
property  or  the  value  thereof,  in  case  a  return  cannot 
be  had,  and  damao^es  for  taking  and  withholdino-  the 
same."  When  it  appears  on  the  trial  that  the  prop- 
erty has  been  destroyed,  that  it  no  longer  exists  in 
specie,  and  cannot,  therefore,  be  returned,  a  judgment 
for  damages  alone  will  not  be  reversed.  (Brown  v. 
Johnson,  45  Cal.,  76.)  In  the  case  of  Geneva  de 
Thomas  v.  Witherby  and  Coyne,  (opinion  reported  in 
the  Pacific  Coast  Law  Journal  as  having  been  filed  July 
25,  1882)  the  plaintiff  pleaded  that  two  cows  known  as 
graded  stock  died,  thereby  rendering  it  impossible  for 
plaintiff  to  return  said  cattle  to  defendants.  It  was 
held  that  this  was  no  defense.  The  court  said:  In 
some  of  the  cases  to  which  we  have  been  referred,  it 
has  been  held  that  the  plaintiff,  who  obtains  the  pos- 
session of  personal  property  by  replevin,  is  excused  from 
returninof  the  same  in  case  it  has  died  since  the  seizure, 
without  any  neglect  or  default  on  the  part  of  the 
party  taking  it.  This  Vv^as  the  doctrine  laid  down  by  the 
Supreme  Court  of  New  York,  in  Carpenter  v.  Stevens, 
12  Wend.,  589.  It  was  there  held  that,  "when  prop- 
erty taken  by  virtue  of  a  writ  of  replevin  is  a  living- 
animal,  and  there  is  a  judgment  of  rctonio  Jiabe^ido,  in 


§  50  CLAIM  AND  DELIVERY.  56 

an  action  on  the  replevin  bond  for  a  breach  of  its  con- 
dition, it  is  a  good  plea  in  the  bar  that  before  the  judg- 
ment in  the  replevin  suit,  the  animal  died  without  the 
default  of  the  plaintiff  in  such  suit ;"  and  to  the  same 
effect  is  the  case  of  Melvin  v.  Winslow,  lo  Me.,  397. 
But  an  examination  of  more  recent  cases  and  later  au- 
thorities, convinces  us  that  the  above  cases  do  not  lay 
down  the  correct  rule  on  this  subject.  The  case  of 
Carpenter  v.  Stephens,  stipra,  was  considered  by  the 
Superior  Court  of  New  York  in  the  caseof  Suydam  v. 
Jenkins,  3  Sandf.  614,  where  it  is  said:  "The  inferences 
that  have  been  stated  seem  to  follow  in  a  logical  se- 
quence, and  if  the  decision  in  Carpenter  v.  Stevens 
were  admitted  to  be  law,  we  should  find  it  difficult  to 
admit  them.  But  this  admission  we  cannot  make.  The 
decision  is  one  of  those  which  we  regret,  but  are  con- 
strained to  say,  we  cannot  follow.  It  appears  to  us  to 
be  wrong  in  principle,  and  it  is  plainly  contradicted  by 
many  authorities.  The  undertaking  of  the  plaintiff  in 
the  replevin  bond,  we  conceive,  is  absolute  to  return 
the  goods  or  pay  the  value  at  the  time  of  the  execution 
of  the  bond.  We  cannot  think  that  a  wrong-doer  is 
ever  to  be  treated  as  a  mere  bailee,  and  that  the  prop- 
ert}^  in  his  possession  is  to  any  extent  at  the  risk  of  the 
owner.  A  plaintiff  who,  without  right  or  tide,  has 
seized  the  property  of  another  by  writ  of  replevin,  is  as 
much  a  wrong-doer  as  a  defendant  in  trover.  No 
reason  can  be  given  why  his  liability  should  be  less 
extensive  ;  and,  in  fact,  when  the  replevin  suit  is  ter- 
minated, although  he  cannot  be  treated  as  a  trespasser, 
he  may  be  sued  in  trover  at  the  election  of  the  defend- 
ant. (Yale  V.  Passett,  5  Denio,  21).  The  decision  in 
Carpenter  v.  Stevens  is  plainly  inconsistent  with  the 
prior  decision  of  the  same   court  in   Rowley  v.  Gibbs, 


57  CLAIM  AND  DELIVERY.  §  50 

(14  John.  385),  in  which  the  defendants  in  a  replevin 
suit,  in  addition  to  a  return  of  the  goods,  were  held  to 
be  entitled  to  damages  for  a  deterioration  in  their  value, 
from  the  time  of  the  replevin,  although  it  was  not  pre- 
tended that  the  decrease  in  value  was  attributable  in 
any  degree  to  the  act  or  default  of  the  plaintiff;  and  it 
is  irreconcilable  with  the  numerous  cases  in  which  it 
has  been  held  expressly,  or  by  a  necessary  implication, 
that  in  a  suit  upon  a  replevin  bond,  the  value  of  the 
property,  as  fixed  by  the  penalty  of  the  bond,  is,  at  the 
election  of  the  plaintiff,  the  true  measure  of  damages." 
(Citing  Mattoon  v.  Pearce,  12  Mass.,  406,  and  numer- 
ous other  cases). 

The  case  of  Carpenter  v  Stevens  is  referred  to  with 
disapprobation  by  Wells  in  his  recent  work  on  re- 
plevin. He  says:  " Questions  frequently  arise  as  to 
the  effect  the  death  or  destruction  of  the  property, 
pending  the  suit,  will  have  on  the  rights  of  the  parties. 
Upon  this  question  the  authorities,  with  few  excep- 
tions, can  be  easily  harmonized.  It  was  said  in  a  New 
York  case  that  when  the  property  sued  for  is  a  living 
animal,  and  it  dies,  it  is  a  good  plea  to  say  that  it  is 
dead.  This  ruling  was  based  upon  the  idea  that  the 
return  had  become  impossible  by  act  of  God ;  but  the 
ruling  has  been  questioned  more  than  once.  To  per- 
mit a  defendant  who  wrongfully  takes  possession  to 
claim  that  he  holds  it  at  the  risk  of  the  real  owner, 
and  not  at  his  own,  and  claim  immunity  from  accident, 
would  be  unjust  in  the  extreme.  The  wrongful  taker 
of  property,  when  called  to  surrender  it  to  the  rightful 
owner  or  pay  the  value,  cannot  defend  himself  from 
judgment  by  showing  his  inability  to  deliver  it  through 
death  or  otherwise."  The  death  of  slaves,  pending 
the  action  for  them,  has  often  been  held  not  to  defeat 


§  50  CLAIM  AND  DELIVERY.  58 

the  plaintiff's  rii^ht  to  a  judgment  for  them  or  their 
value.  Sedewick,  in  his  work  on  Damao;;es,  vol.  2, 
marginal  page  500,  also  refers  with  disapprobation  to 
the  case  of  Carpenter  v.  Stevens,  and  says:  "In  a 
case  in  New  York  it  was  decided  in  a  suit  on  a  re- 
plevin bond  that  the  non-return  of  the  property  was 
excused  by  its  inevitable  destruction  before  judgment. 
This  decision  was  based  on  the  old  rule  that  if  the 
condition  of  a  bond  became  impossible  by  the  act  of 
God,  the  penalty  is  saved.  But  it  seems  contrary  to 
principle,  and  has  been  expressly  disapproved  of.  As 
between  parties  to  a  contract  it  seems  very  reasonable 
that  all  interested  in  its  execution  should  bow  to  the 
Superior  Power  which  renders  its  performance  impos- 
sible. But  it  cannot  be  contended  that  a  wrong-doer 
should  be  excused  by  any  subsequent  event.  Nor  do 
the  analogies  of  the  law  justify  any  such  decision." 

In  the  case  of  Mills  v.  Gleason,  21  Cal.  280,  the 
court  say:  "A  failure  to  prosecute  (replevin)  is  a 
breach  of  the  undertaking,  and  the  legal  and  necessary 
result  is  that  the  sureties  to  the  undertaking  are  liable 
for  whatever  injury  the  defendant  has  sustained." 

In  the  case  of  de  Thomas  v.  Witherby,  the  court 
sums  up  as  follows :  The  weight  of  authority  is  man- 
ifesdy  against  excusing  the  party  who  has  replevined 
goods,  from  returning  the  same  or  responding  in 
damages  for  their  value,  because  they  have  been  lost 
by  the  act  of  God,  and  it  appears  to  us  that  upon  no 
sound  principle  can  he  be  excused.  A  plaintiff  not 
beine  the  owner  of  gfoods  who  takes  them  out  of  the 
possession  of  the  real  owner,  holds  them  in  his  own 
wrong,  and  at  his  own  risk.  He  has  deprived  the  real 
owner  of  the  possession,  and  has  also  deprived  him  of 
the  means  of  disposing  of  the  property  pending  the 


59  CLAIM  AND  DELIVERY.  §  5  I 

litigation  ;  and  when  at  the  end  of  perhaps  a  protracted 
litigation  it  is  determined  that  the  plaintiff  in  the 
replevin  suit  had  no  right  to  the  possession  of  the 
goods,  and  judgment  is  rendered  against  him  for  the 
return  of  the  property  or  its  value,  he  cannot,  on 
principle  or  authority,  be  excused  from  satisfying  such 
judgment  under  a  plea  that  the  property  has  been  lost 
in  his  hands,  even  by  the  act  of  God. 

§51.  Attachment  Lien  in  Replevin. — The  ques- 
tion as  to  whether  the  lien  of  attachment  continues 
after  the  replevy  of  goods  is  decided  affirmatively  by 
the  supreme  court  in  the  case  of  Hunt  v.  Robinson  et 
al,  II  Cal,  262.  This  was  an  action  against  the  sure- 
ties on  a  replevin  bond.  The  facts  as  detailed  in  the 
opinion  of  the  court  are  as  follows :  Treadwell  com- 
menced suit  against  David  Jones,  by  attachment,  which 
was  levied  upon  certain  personal  property  by  the  plain- 
tiff Hunt,  as  sheriff  of  Sacramento  County.  Mary 
Jones,  wife  of  David  Jones,  claimed  the  property  as  a 
sole  trader,  and  commenced  her  action  of  replevin,  and 
obtained  possession  of  the  propert}^  upon  delivering 
an  undertaking  as  required  by  the  i02d  section  of  the 
Practice  Act,  executed  by  defendants,  Robinson  and 
Skinker.  The  replevin  suit  was  decided  on  the  5th  of 
February,  1855,  in  favor  of  Hunt,  and  a  motion  made 
for  a  new  trial  by  Mrs.  Jones,  which  motion  was  pend- 
ing until  March  9,  1855,  when  it  was  overruled.  Tread- 
well  obtained  judgment  against  David  Jones,  Nov.  30, 
1854,  for  ^4,300.  On  the  i8th  of  February,  1855,  cer- 
tain executions  in  favor  of  other  creditors  of  David 
Jones  being  in  the  hands  of  the  plaintiff  Hunt,  were 
levied  by  him  upon  the  same  property,  and  the  prop- 
erty sold  about  the  last  of  February.      The    sheriff, 


§51  CLAIM  AND  DELIVERY.  6o 

being-  in  doubt  as  to  which  of  the  several  creditors 
were  entitled  to  the  proceeds  of  the  sale,  paid  the 
money  into  the  6th  District  Court,  and  filed  his  bill  of 
interpleader,  making  Treadwell  and  the  other  creditors 
parties.  Upon  the  hearing,  the  District  Court  decided 
that  the  second  class  of  creditors  were  entitled  to  the 
proceeds.  From  this  decision  no  appeal  was  taken  by 
any  party.  On  March  17,  1855,  Hunt  issued  his  ex- 
ecution upon  the  judgment  obtained  by  him  in  the  re- 
plevin suit,  which  was  returned  by  the  coroner  unsatis- 
fied. The  sheriff  then  brought  his  suit  against  the 
sureties  in  the  replevin  bond,  and  obtained  judgment 
against  them  for  the  assessed  value  of  the  property 
replevined,  and  for  costs,  and  the  defendants  appealed 
to  the  Supreme  Court,  which  court  decided  that  the 
lien  of  Treadwell 's  attachment  continued  after  the  re- 
plevy of  the  goods  by  Mary  Jones.  When  the  same 
property  came  into  the  hands  of  Hunt,  as  sheriff,  the 
condition  of  the  replevin  bond,  to  return  the  property-, 
was  fulfilled.  The  property  was  then  liable  to  a  second 
levy,  but  such  second  levy  was  subject  to  the  levy 
under  the  prior  attachment. 


CHAPTER  IV. 

INJUNCTIONS. 

§  52.     May  be  Served  on  any  Day. 

§  53.     How  Served. 

§  54.     When  Served  on  Sheriff. 

§  52.  When  may  be  Served. — Injunctions  and 
writs  of  prohibition  may  be  issued  and  served  on  legal 
holidays  and  non-judicial  days.     (§  76,  C.  C.  P.) 

§  53.  How  Served. — The  injunction  is  served  by 
delivering  a  copy,  showing  the  original,  and  informing 
the  person  served  of  the  contents  thereof.  The  statute 
points  out  no  mode  of  service  of  an  injunction ;  but  it 
is  held  in  Edmondson  v.  Mason,  16  Cal.,  387,  that  in 
conformity  with  the  provision  relative  to  the  summons, 
delivery  of  a  copy  is  essential  to  personal  service, 
where  that  is  required ;  but  whether  it  would  be  neces- 
sary to  exhibit  the  original,  unless  specially  requested 
by  the  party  served,  no  opinion  is  expressed  by  the 
court.  To  avoid  possible  complications,  the  method 
above  indicated  should  be  followed. 

§  54.    When  Served  on  Sheriff. — Where  a  sheriff 


§   54  INJUNCTIONS.  62 

levies  on  and  is  about  to  sell  property  of  an  execu- 
tion debtor,  and  the  defendant  in  execution  obtains 
from  the  court  in  which  the  judgment  was  rendered  an 
injunction  restraining  the  plaintiff  in  the  judgment, 
his  servants,  etc.,  from  proceeding  to  sell  under  such 
execution,  and  this  injunction  is  served  upon  the 
sheriff,  who  in  defiance  of  it  afterwards  makes  the  sale, 
he  is  a  naked  trespasser,  and  liable  in  damages — even 
though  he  be  not  a  party  to  the  injunction  suit.  It 
was  so  held,  in  the  case  of  Buffandeau  v.  Edmondson, 
sheriff,  17  Cal.  437,  and  that  it  was  unnecessary  to 
consider  whether  the  bill  of  complaint  showed  a  prop- 
er case  for  an  injunction,  or  whether  the  injunction 
was  regularly  granted  or  not.  It  was  enough  for  the 
sheriff  to  know  that  a  court  of  competent  jurisdiction 
had  made  the  order,  and  then  it  became  his  duty  to 
obey  it.  It  is  no  part  of  a  sheriff's  duty  to  sit  in 
judgment  upon  judicial  acts,  and  reform  the  errrors 
and  revise  the  orders  of  the  judge.  The  injunction, 
so  long  as  it  remained  in  force,  operated  as  a  super- 
sedeas to  the  execution ;  the  legal  authority  to  sell  the 
property  was  withdrawn  by  the  same  authority  which 
had  given  it,  to  wit:  by  the  act  of  a  competent  court; 
and  the  sheriff  had  no  more  legal  justification  for  his 
act  than  if  he  had  proceeded  to  sell  after  the  execu- 
tion had  been  quashed.  The  injunction  in  this  case 
had  direct  effect  upon  the  process  itself,  and  though, 
in  order  to  charge  the  sheriff,  it  was  necessary'  that  he 
should  have  notice  of  the  order,  yet,  after  such  notice, 
his  act  was  in  defiance  of  law,  and  in  contempt  of 
the  court.  The  principle  is  familiar  enough  to  need 
no  citation  of  authorit)^  that  a  sheriff  cannot  seize  or 
sell  the  property  of  a  citizen,  unless  he  has  legal  pro- 
cess authorizing  it;  and  that  process  which  has  been 


6t,  injunctions.  §  54 

superseded  is  no  authority  at  all  when  the  officer  is 
duly  notified  of  the  order  of  supej^scdeas.  If  the 
sheriff,  without  legal  authority,  converted  the  plaintiff's 
property,  prima  facie,  he  is  responsible  to  the  plaintiff 
for  at  least  its  value ;  and  if  he  has  any  defense 
arising  from  the  fact  that  the  property  was  justly  sub- 
ject to  the  plaintiff's  debts,  and  has  been  so  applied, 
it  will  be  time  enough  to  inquire  whether  this  is  prop- 
erly in  mitigation  of  damages,  when  the  defense  is 
made  and  the  facts  presented. 


CHAPTER  V. 


HABEAS    CORPUS. 


§  55 
§56 
§  57 
§58 
§  59 


How  Served. 

The  Return. 

Warrant  of  Arrest. 

When  Writ  may  be  Served. 

Service  without  Fees. 


§  55.  How  Served. — The  writ  of  habeas  corpus 
must  be  directed  to  the  person  having  custody  of  or 
restraining  the  person  on  whose  behalf  the  appHcation 
is  made.  If  it  is  directed  to  the  sheriff  or  other  min- 
isterial officer  of  the  court  out  of  which  it  issues,  it 
must  be  delivered  by  the  clerk  to  such  officer  without 
delay,  as  other  writs  are  delivered  for  service.  If  it  is 
directed  to  any  other  person,  it  must  be  delivered  to 
the  sheriff,  and  be  by  him  served  upon  such  person  by 
delivering  the  same  to  him  without  delay.  If  the 
person  to  whom  the  writ  is  directed  cannot  be  foiind, 
or  refuses  admittance  to  the  officer  or  person  serving 
or  delivering  such  writ,  it  may  be  served  or  delivered 
by  leaving  it  at  the  residence  of  the  person  to  whom 
it  is  directed,  or  by  affixing  it  to  some  conspicuous 
place  on  the  outside  either  of  his  dwelling-house  or  of 


65  HABEAS  CORPUS.  §  56 

the  place  where  the  party  Is  confined  or  under  restraint. 
(§§  1477-78,  Penal  Code.) 

§  56.  The  Return. — The  person  on  whom  the 
writ  is  served,  must  state  in  his  return,  plainly  and 
unequivocally: 

1.  Whether  he  has  or  has  not  the  party  in  his 
custody,  or  under  his  power  or  restraint ; 

2.  If  he  has  the  party  in  his  custody  or  power,  or 
under  his  restraint,  he  must  state  the  authority  and 
cause  of  such  imprisonment  or  restraint ; 

3.  If  the  party  is  detained  by  virtue  of  any  writ, 
warrant,  or  other  written  authority,  a  copy  thereof 
must  be  annexed  to  the  return,  and  the  original  pro- 
duced and  exhibited  to  the  court  or  judge  on  the 
hearing  of  such  return.      (  See  §    1480,  Penal  Code.) 

No  writ  of  habeas  corpus  can  be  disobeyed  for 
defect  in  form.      (§  1495,  Penal  Code.) 

Upon  receiving  a  writ  of  habeas  corpus,  the  officer 
should  endorse  upon  it  the  time  of  its  reception,  and 
make  and  retain  a  copy  of  the  writ.  The  author  of 
this  work  has  found  that  there  is  a  diversity  of  opinion 
amongst  attorneys  and  officers  as  to  the  manner  in 
which  this  writ  should  be  served — whether  service 
should  be  made  with  the  original  writ  or  a  copy  thereof. 
Section  1478  of  the  Penal  Code  seems  to  require  the 
service  to  be  made  with  the  orio^inal  writ.  And  section 
1479  gives  weight  to  this  construction  by  providing 
that,  if  the  person  to  whom  the  writ  is  directed  refuses, 
after  service,  to  obey  the  same,  the  court  or  judge, 
7ipon  affidavit  (not  upon  any  return  of  the  officer  who 
served  the  writ),  must  issue  an  attachment  against  such 
person,  etc.  Under  the  old  common  law  practice,  the 
original  writ  of  habeas  corpus  was  served  upon  the 
5 


§57  HABEAS  CORPUS.  66 

person  to  whom  it  was  directed.  The  same  practice  is 
followed  in  the  State  of  New  York,  the  codes  of  which 
state  were  closely  followed  by  the  code  commissioners 
of  California  in  codifying  the  laws  of  this  state.  Sec- 
tion 1480  of  the  Penal  Code  commands  that  "the  per- 
son upon  whom  the  writ  is  served  must  state  in  his 
return,"  etc.  The  statute  contemplates  but  one  return, 
and  that  is  of  the  person  to  whom  the  writ  is  directed. 
A  record  of  the  service  by  the  officer  should  be  made 
in  the  court  from  which  the  writ  issued,  so  that  parties 
interested  in  the  proceeding  need  not  be  compelled  to 
seek  the  officer  in  person  to  ascertain  if  service  had 
been  made.  To  this  end,  a  return  may  be  made  by 
the  officer,  and  filed  with  the  clerk  of  the  court,  upon  a 
copy  of  the  writ.  Such  return  may  be  in  the  following 
form : 

In  the  Matter  of  the  Application  of 

John  Doe 

For  a  Writ  of  Habeas  Corpus. 

Count)^  of  Alameda,     ss.  I  hereby  certify  that  on 

the day  of 1884,  I  served  the  writ  of  habeas 

corpus  issued  in  the  above  entided  matter  (a  copy  of 
which  is  hereto  annexed)  upon  the  said by  de- 
livering said  writ  to  him  personally  at  said  Count}'  of 
Alameda. 

[Signed] : 

Sheriff  of  Alameda  County. 

§  57.  Warrant  may  Issue  instead  of  Writ. — 
The  court  or  judge  may  issue  a  warrant  (instead  of 
wTit  of  habeas  corpus)  directed  to  the  sheriff,  coroner 
or  constable,  commanding  the  officer  to  take  the  per- 


6;  HABEAS  CORPUS.  §§   58,    59 

son  held  in  custody,  confinement  or  restraint,  and  forth- 
with bring  him  before  such  court  or  judge.  A  com- 
mand may  .also  be  inserted  in  the  warrant  for  the 
apprehension  of  the  person  charged  with  such  illegal 
detention  and  restraint.      (§§  1497-8  Penal  Code.) 

§  58.  When  may  be  Served. — Such  writ  or  pro- 
cess may  be  issued  and  served  on  any  day  or  at  any 
time.      (§  1592  Penal  Code.) 

§  59.  No  Fees  in  Habeas  Corpus. — No  fees  can 
be  collected  in  the  service  of  any  process  in  habeas 
corpus.      (§  4333  Political  Code.) 


CHAPTER  VI. 

ATTACHMENT    ON    REAL    ESTATE. 

§  60.  The  Object  of  the  Writ. 

§61.  Void  Writs. 

^  62.  Effect  of  New  Summons. 

§  63.  Where  Debt  is  Secured  by  Mortgage. 

§  64.  May  be  Levied  before  Service  of  Summons. 

§  65.  Void  for  Want  of  Proper  Undertaking. 

§  66.  LiabiHty  of  Officer  on  Void  Judgment. 

§  67.  Liability  of  Party  Enforcing  Void  Judgment. 

§  68.  Irregularity  in  Issuance. 

§  69.  Attachment  when  Debt  not  Due. 

§  70.  On  Contract  not  Due  in  this  State. 

§  71.  Right  to  Inter\-ene. 

§  72.  What  the  Writ  must  State. 

§  73.  Sufficiency  of  Sureties. 

^  74.  Instructions  to  Sheriff. 

§  75.  Directions  must  be  in  Writing. 

§  76.  How  Property  must  be  Attached. 

§  77.  How  to  Attach  Fixtures  on  Realty. 

§  78.  The  Service  on  Occupant. 

§  79.  The  Service  on  Third  Party. 

§  80.  Posting  Copy  on  Real  Estate. 

§  81.  What  Constitutes  Complete  Attachment. 

§  82.     When  Lien  of  Levy  Takes  Effect. 

§  83.     How  Attachment  may  be  Released. 

§  84.     Return  of  Attachment. 

§  60.  The  Object  of  the  Writ  of  attachment 
is  to  secure,  in  the  interest  of  the  plaintiff,  sufficient 
property   belonging    to   the   defendant  to   satisfy   the 


6g  ATTACHMENT  ON  REAL  ESTATE.  §  6 1 

plaintiff's  claim.  If  may  be  issued  at  the  time  of 
the  issuance  of  the  summons,  or  at  any  time  afterward. 
It  enables  the  creditor  to  authorize  the  sheriff  to  seize 
the  property  of  the  debtor  and  to  hold  it  until  the 
court  can  determine  the  respective  rights  of  the 
parties  by  a  judgment.  This  being  the  object  of  the 
writ,  it  is  clearly  the  duty  of  the  officer  to  use  all  due 
diligence  in  the  service  thereof.  Any  delay  on  his 
part  may  defeat  this  object,  and  render  him  liable  to 
the  plaintiff  for  whatever  loss  may  be  thereby  sus- 
tained. 

§  6i.  Void  Writs. — An  attachment  issued  before 
the  issuance  of  the  summons  in  the  suit,  is  void,  and 
the  subsequent  issuance  of  the  summons  cannot  cure 
it.  (Low  V.  Henry,  9  Cal.  538.)  Section  405  of  the 
Code  of  Civil  Procedure  provides  that  civil  actions  in 
the  courts  of  this  State  are  commenced  by  filing  a 
complaint.  Summons  may  issue  at  any  time  within 
one  year.  The  plaintiff  "at  the  time  of  issuing  the 
summons,  or  any  time  afterward,  may  have  the  prop- 
ert>^  of  the  defendant  attached."  These  provisions 
must  be  strictly  followed,  and  the  attachment,  if  issued 
before  the  summons,  is  a  nullity.  The  issuance  of  the 
summons  afterwards  cannot  cure  that  which  was  void 
from  the  beginning. 

It  is  not  presumed  that  a  county  clerk  or  a  justice  of 
the  peace  will  issue  a  writ  of  attachment  before  the 
summons.  Such  a  procedure  could  only  arise  through 
the  Grossest  neoflieence,  and  would  not  be  excusable 
upon  any  plea  of  confusion  caused  by  haste  or  multi- 
plicity of  dudes  requiring  immediate  attention  at  the 
time  of  the  error.  But  if  a  sheriff  receive  information 
that  no  summons  has  been  issued  at  the  time  the  writ 


§  62  ATTACHMENT  ON  REAL  ESTATE.  JO 

is  placed  in  his  hands,  lie  will  serve  the  writ  at  his 
peril. 

§  62.     Attachment  not  Affected  by  New  Sum- 
mons.— In  Seaver  v.  Fitzgerald,  23  Cal.,  86,  in  a  suit 
commenced  before  a  justice  of  the  peace,  if  the  sum- 
mons be  returned  by  the  officer  with  his  endorsement 
thereon  that  no  service  has  been  made  because  defend- 
ant cannot  be  found,  and  on  the  return  day  thereof  it  is 
further  made  to  appear  by  affidavit  that  the  defendant 
conceals  himself  to  avoid  service  of  process,  the  suit  does 
not  thereby  abate,  but  the  magistrate  may  continue  the 
cause,  issue  a  new  summons,  and  make  an  order  for 
its  service  by  publication.     In  such  case,  when  an  at- 
tachment is  regularly  issued  by  the  justice,  at  the  time 
of  the  issuance  of  the  first  summons,  the  attachment  is 
not  vitiated  by  the  failure  to  serve  the  first  summons 
and  the  issuance  of  a  second  one,  nor  is  the  validity  of 
the  attachment  in  any  way  affected  by  the  proceedings. 
The  plaintiff  contended  that  the  second  summons  was 
the  summons  in  the  case,  because  that  was  the  sum- 
mons served  by  publication,  and  as  the  writ  of  attach- 
ment was  issued  before  this  second  summons,  it  was 
therefore  void.     The    court  held  that  this  point   was 
clearly  untenable,   that   a    summons  was  duly    issued 
before  or  at  the  time  of  the  issuing  of  the  attachment,  and 
the  attachment  was  therefore  valid  when  it  issued.     The 
fact  that  the  defendant  absented  himself  so  that  the 
summons  could  not  be  served  on  him  before  the  return 
da)-  thereof,  and  that  it  was  returned  not  served,  could 
not  have  the  effect  of  vitiating  the  attachment.     No  rule 
of  law  or  provision  of  statute  has  been  referred  to  by  coun- 
sel to  sustain  any  such  position,  and  such  a  principle  would 
be  most  pernicious  in  its  consequences.      It  would  only 


yi  ATTACHMENT  ON  REAL  ESTATE.  §§  63-65 

be  necessary  for  a  debtor  to  conceal  himself  for  a  few 
days,  until  the  return  day  of  a  summons  issued  against 
him  had  passed,  to  invalidate  any  attachment  which  had 
been  issued  against  him.  A  principle  so  manifestly 
unjust  in  its  results  could  only  be  sustained  by  clear 
and  positive  statutor)^  provisions,  which  do  not  exist  in 
our  laws. 

§  63.  Where  Debt  is  Secured  by  Mortgage. — 
If  an  attachment  be  levied  in  an  action  for  a  debt  which 
has  been  secured  by  a  mortgage,  the  attachmen  will 
be  dissolved. 

§  64.  Attachment  may  be  Levied  before  Serv- 
ice of  Summons. — Although  the  writ  of  attachment 
may  not  be  issued  before  the  summons,  it  may  be 
served  before  the  summons  is  served.  The  service  of 
the  summons  cuts  no  figure  in  the  attachment.  The 
attachment  cannot,  but  the  summons  may,  be  served 
by  a  private  person. 

§  65.  Attachment  Void  for  want  of  Proper 
Undertaking. — Where  the  undertaking  given  on 
issuing  an  attachment  from  a  justice's  court  was  to  the 
effect  that  plaintiff  would  pay  all  costs,  etc.,  and  the 
damages  the  defendant  might  sustain  by  reason  of 
the  attachment,  "not  exceeding  one  hundred  dollars": 
held,  that  the  undertaking  was  bad,  and  rendered  the 
attachment  void  because  not  issued  in  substantial  con- 
formity with  the  provisions  of  the  553d  section  of  the 
Practice  Act.  (Hisler  v.  Carr,  34  Cal.  641.)  In  the 
same  case  it  was  held  that  where  the  affidavit  failed  to 
show  that  the  plaintiff  had  a  cause  of  action  against 
defendant,  the  summons  which  was  made  returnable 


§§  66-68  ATTACHMENT  ON  REAL  ESTATE.  72 

more  than  ten  clays  from  its  date  was  void,  as  was  also 
an  attachment  issued  in  the  same  case. 

§  66.  Liability  on  Void  Judgment. — In  suit  on 
account  against  Randall  &  Inos,  partners,  the  former 
only  being  served  with  process,  a  joint  judgment  was 
rendered  against  both:  Held,  that  the  judgment  is 
void  as  against  the  party  not  served.  (Inos  v.  Win- 
spear,  1 8  Cal.  397.) 

§  67.  Liability  of  Party  Enforcing  Void  Judg- 
ment.— Held,  further,  that  where  the  execution  on 
such  joint  judgment  directed  the  officer  "to  levy  of 
the  goods  and  chattels,  land  and  tenements  of  the  said 
judgment  debtors,'^  said  sum,  etc.,  the  officer  is  author- 
ized to  seize  the  individual  as  well  as  joint  property  of 
the  judgment  debtors;  and  hence,  that  where  the 
officer  seized  and  sold  under  such  execution  the  indi- 
vidual property  of  the  party  not  served  with  process, 
the  jusdce  of  the  peace  issuing  the  writ,  and  the 
plaindff  therein — at  whose  request  it  was  issued,  who 
took  part  in  the  proceedings  and  received  the  proceeds 
of  the  sale — are  each  liable  to  the  party  not  served  in 
damages  for  the  seizure. 

§  68.  Irregularity  in  Issuance  of  Attachment. 
— Where  an  attachment  was  issued  on  a  complaint, 
which  was  a  printed  form,  with  the  blanks  filled  up  by 
the  clerk,  at  the  request  of  plaintiff,  but  no  name 
signed  to  it  till  next  day,  and  after  other  attachments  on 
the  same  property,  when  it  was  signed  by  the  clerk,  with 
the  name  of  the  plaintiff's  attorney:  Held,  that  the 
action  of  the  clerk,  though  not  correct,  was  only  an  ir- 
regularity, and  the  complaint  was  not  void.  (Dixey  v. 
Pollock,  8  Cal.  570.) 


']'^  ATTACHMENT  ON  REAL  ESTATE.  §§  69-72 

§  69.  Attachment  where  the  Debt  is  not  Due. 
— An  attachment  issued  upon  a  debt  not  due  is  void  as 
against  creditors  whose  rights  are  injuriously  affected 
by  it.  Patrick  v.  Montader,  13  Cal.  434,  goes  upon  the 
ground  that  the  debt  on  which  the  attachment  issued 
was  equitably  due,  and  hence  does  not  conflict  with  the 
rule  laid  down  here.     (Davis  v.  Eppinger,  18  Cal.  379.) 

§  70.  Contract  not  made  in  this  State. — If  a 
contract  is  not  made  in  this  State,  there  must  be  an 
express  stipulation  that  it  shall  be  paid  in  this  State,  in 
order  to  authorize  the  issuance  of  an  attachment  in  an 
action  upon  it.      (Eck  v.  Hoffman,  55  Cal.  501.) 

§  71.  Right  to  Intervene. — Where  a  subsequent 
attaching  creditor  has  his  attachment  levied  on  the 
property  previously  levied  on  by  a  prior  attaching  cred- 
itor, he  is  entitled  to  intervene  in  the  action  between 
the  first  attaching-  creditor  and  the  defendant,  if  the 
first  attachment  was  fraudulently  procured,  and  the 
common  debtor  has  not  sufficient  property  to  pay  both 
claims.      (Coghill  v.  Marks,  29  Cal.,  673.) 

§  72.  What  the  Writ  must  State. — The  writ 
must  be  directed  to  the  sheriff  of  any  county  in  which 
property  of  such  defendant  may  be,  and  must  require 
him  to  attach  and  safely  keep  all  the  property  of  such 
defendant  within  his  county  not  exempt  from  execution, 
or  so  much  thereof  as  may  be  sufficient  to  satisfy  the 
plaintiff's  demand,  the  amount  of  which  must  be  stated 
in  conformity  with  the  complaint,  unless  the  defendant 
give  him  security  by  the  undertaking  of  at  least  two 
sufficient  sureties,  in  an  amount  sufficient  to  satisfy 
such  demand,  besides  costs,  or  in  an  amount  equal  to 


§§   73-/5  ATTACHMENT  ON  REAL  ESTATE.  74 

the  value  of  the  property  which  has  been  or  is  about 
to  be  attached ;  in  which  case,  to  take  such  undertaking. 
(§  540,  C.  C.  P.) 

§  J2)-  Sufficiency  of  Sureties. — If  the  defendant 
desires  to  give  the  undertaking  mentioned  in  section 
540,  Code  Civil  Procedure,  the  officer  should  satisfy 
himself  that  the  sureties  are  able  to  respond  to  the  ob- 
ligation they  assume.  He  should  question  the  persons 
who  present  themselves  to  him  as  sureties,  concerning 
their  property  qualifications,  and  seek  to  secure  the 
plaintiff  as  he  would  himself. 

§  74.  Instructions  to  Sheriff. — The  writ  should 
be  accompanied  with  written  instructions  directing  the 
officer  as  to  the  property  to  be  attached  ;  and  when  the 
property  is  real  property,  the  directions  should  state  in 
whose  name  the  property  stands  of  record.  The  best 
form  of  instruction  to  the  sheriff  should  contain  such  a 
description  as  would  give  satisfaction  if  contained  in  a 
deed;  for,  if  the  cause  is  prosecuted  to  judgment  and 
sale,  and  a  deed  pass  to  the  purchaser,  the  description 
of  the  land  given  in  the  first  proceeding  will  follow  to 
the  deed.  Although  the  officer  is  bound  to  attach 
property'  belonging  to  the  defendant  without  written 
instructions  to  do  so,  if  he  know  of  any  that  is  not  ex- 
empt within  the  county,  yet,  if  such  directions  are  not 
given,  he  may  afterwards  seek  to  excuse  himself  from 
neglect  by  pleading  ignorance  or  uncertainty  of  owner- 
ship. Where  specific  instructions  are  given  in  writing, 
the  party  desiring  the  levy,  and  the  officer,  at  once 
arrive  at  a  mutual  understanding  as  to  the  work  to  be 
done. 


/o- 


Directions  of  Attorney  must  be  in  Writ- 


75  ATTACHMENT  ON  REAL  ESTATE.  §   76 

ing. — No  directions  or  authority  by  a  party  or  his  at- 
torney, to  a  sheriff,  in  respect  to  the  execution  of  pro- 
cess or  return  thereof,  or  to  any  act  or  omission  thereto, 
is  available  to  discharge  or  excuse  the  sheriff  from  a 
liability  for  neglect  or  misconduct,  unless  it  is  contained 
in  a  writing  signed  by  the  attorney  of  the  party,  or  by 
the  party,  if  he  has  no  attorney.  (Political  Code, 
§  4185.)  This  provision  will  not  excuse  an  officer  from 
performing  any  duty  incumbent  upon  him  in  serving 
process  and  taking  property. 

§  76.  How  Real  and  Personal  Property  should 
be  Attached. — The  sheriff  to  whom  the  writ  is  directed 
and  delivered  must  execute  the  same  without  delay,  and 
if  the  undertaking  mentioned  in  section  540  be  not 
given,  the  attachment  must  be  made  as  provided  in 
section  542  of  the  Code  of  Civil  Procedure.  The 
officer  is  not  bound  to  look  up  the  defendant  to  ascer- 
tain if  he  wishes  to  o-ive  the  undertaking,  nor  would  it 
be  proper  for  him  to  delay  executing  the  writ  for  that 
purpose. 

1.  Real  property,  standing  upon  the  records  of  the 
county  in  the  name  of  the  defendant,  must  be  attached 
by  filing  with  the  recorder  of  the  county  a  copy  of  the 
writ,  together  with  a  description  of  the  property  at- 
tached, and  a  notice  that  it  is  attached,  and  by  leaving 
a  similar  copy  of  the  writ,  description,  and  notice  with 
an  occupant  of  the  property,  if  there  is  one ;  if  not, 
then  by  posting  the  same  in  a  conspicuous  place 
on  the  property  attached, 

2.  Real  property,  or  any  interest  therein,  belonging 
to  the  defendant  and  held  by  any  other  person,  or 
standing  on  the  records  of  the  county  in  the  name  of 
any  other  person,  must  be  attached   by  filing  with  the 


§   77  ATTACHMENT  ON   REAL  ESTATE,  76 

recorder  of  the  county  a  copy  of  tlie  writ,  together  with 
a  description  of  the  property  and  a  notice  that  such 
real  property  and  any  interest  of  the  defendant  therein, 
held  b\-  or  standing  in  the  name  of  such  other  person, 
(naming  him)  are  attached,  and  by  leaving  with  the 
occupant,  if  any,  and  with  such  other  person  or  his 
agent,  if  known  and  within  the  county,  or  at  the  resi- 
dence of  either,  if  within  the  county,  a  copy  of  the 
writ, with  a  similar  description  and  notice.  If  there  is 
no  occupant  of  the  property,  a  copy  of  the  writ,  to- 
gether with  such  description  and  notice,  must  be 
posted  in  a  conspicuous  place  upon  the  property. 

3.  Personal  property,  capable  of  manual  delivery, 
must  be  attached  by  taking  it  into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares, 
of  any  corporation  or  company  must  be  attached  by 
leaving  with  the  president  or  other  head  of  the  same, 
or  the  secretary,  cashier,  or  other  managing  agent 
thereof,  a  copy  of  the  writ,  and  a  noUce  stating  that  the 
stock  or  interest  of  the  defendant  is  attached,  in  pur- 
suance of  such  writ. 

5.  Debtsandcredits,  and otherpersonal  property,  not 
capable  of  manual  delivery,  must  be  attached  by  leav- 
ing with  the  person  owing  such  debts,  or  having  in  his 
possession  or  under  his  control  such  credits  and  other 
personal  property,  or  with  his  agent,  a  copy  of  the  writ 
and  a  notice  that  the  debts  owing  by  him  to  the  defend- 
ant, or  the  credits  and  other  personal  property  in  his 
possession,  or  under  his  control,  belonging  to  the  de- 
fendant, are  attached  in  pursuance  of  such  writ. 

§  "]"].  How  to  Attach  Fixtures  on  Realty. — 
Where  the  attachment  or  execution  is  to  be  levied 
upon  steam  boilers,  engines,  pumps,  or  other  articles 


77  ATTACHMENT  ON  REAL  ESTATE.     §§  78,  79 

that  have  been  attached  to  the  realty  so  as  to  become 
a  part  thereof,  the  levy  should  be  made  in  the  manner 
provided  in  subdivision  2,  section  542,  Code  of  Civil 
Procedure.  It  is  the  interest  of  the  defendant  in  the 
land  which  is  to  be  attached.  And  where  such  fixtures 
are,  from  their  nature  or  exposed  condition,  liable  to 
clandestine  removal,  or  injury  through  malice  or  other- 
wise, the  officer  will  be  justified  by  consent  of  the 
plaintiff  in  putting  a  keeper  in  charge  thereof  to  take 
care  of  the  property  so  that  he  may  have  it  intact  at 
the  time  of  sale.  If  the  plaintiff  decline  to  incur  the 
expense  of  a  keeper,  he  cannot  complain  of  laxity  on 
the  part  of  the  officer,  if  the  property  is  lost  or  injured 
through  lack  of  care  on  his  part. 

§  78.  Service  on  Occupant. — In  attaching  real 
estate  it  is  not  necessary  to  go  to  the  land,  if  an 
occupant  can  be  served  with  a  copy  of  the  writ, 
description,  and  notice,  without  going  to  the  land.  It 
is  not  necessary  to  serve  the  defendant  with  a  copy  of 
the  writ,  description,  and  notice,  except  he  be  the 
occupant  of  the  land  attached.  A  person  may  be  an 
occupant  of  real  estate  although  there  be  no  buildings 
upon  it.  He  may  occupy  the  bare  land  for  the  storage 
of  hay,  or  any  other  commodity.  If  he  be  an  occu- 
pant in  any  capacity,  he  is  entided  to  nodce  of  the 
levy,  and  a  service  upon  him  will  be  a  service  upon  an 
occupant  within  the  law.  The  service  of  the  writ, 
descripdon  and  notice  upon  an  occupant  (if  there  is 
one)  is  made  by  personally  delivering  to  and  leaving 
the  copy  with  the  occupant. 

§  79.     Service    on    Third    Party.  —  When    the 
person,  who  is  not  the  defendant,  and  in  whose  name 


§§  8o,   8 1  ATTACHMENT  ON  REAL  ESTATE.  78 

the  property  stands  on  the  records,  is  not  in  the 
county,  and  has  no  agent  in  the  county,  and  neither  he 
nor  any  agent  of  his  have  a  residence  in  the  count)', 
and  the  service  contemplated  in  the  foregoing  para- 
graph cannot  thus  be  made,  the  attachment  will  not 
for  that  reason  be  invalidated,  but  such  facts  should  be 
set  out  in  the  return  made  by  the  officer  on  the  writ. 

§  80.  Posting  Copy  on  Real  Estate. — If  there 
is  no  fence  or  building  upon  the  land  attached,  the 
posting  may  be  done  by  setting  a  post  or  stake  in  the 
ground  and  attaching  thereto  the  copy  of  the  writ, 
description  and  notice. 

§  81.  What  Constitutes  Complete  Attach- 
ment.— To  complete  the  service  and  create  a  Hen, 
both  the  acts  required  by  the  law  must  be  performed. 
Neither  act,  by  itself,  will  amount  to  a  service  of 
the  attachment  and  create  a  lien  on  the  property. 
The  performance  of  both  acts  is  essential  to  create  a 
lien.  (Wheaton  v.  Neville,  19  Cal.  44;  Main  v.  Tap- 
pence,  42  Cal.  209.)  But,  in  addition  to  this,  the 
requisite  acts  must  be  performed  in  the  order  in  which 
they  are  named  in  the  code — that  is  to  say,  the  filing 
of  a  copy  with  the  recorder  must  precede  the  service 
on  an  occupant  or  the  posting  on  the  premises.  The 
lien  of  an  attachment  of  real  property  is  not  perfected 
until  both  the  acts  prescribed  by  the  statute,  to  wit. : 
filing  with  the  recorder  a  copy  of  the  writ,  together 
with  a  description  of  the  property  attached,  and  a 
notice  that  it  is  attached,  and  by  leaving  a  similar  copy 
of  the  writ,  description  and  notice  with  an  occupant  of 
the  property,  if  there  is  one,  or  posting  a  copy  on  the 
premises  if  there  be  no  occupant — are  performed.     It 


79  ATTACHMENT  ON  REAL  ESTATE.  §  82 

has  been  decided  by  die  supreme  court,  in  die  case  of 
Wheaton  v.  Neville,  et  al.,  19  Cal.  43,  and  affirmed  in 
subsequent  decisions,  that  the  omission  of  either  act  is 
fatal  to  the  creation  of  the  lien.  It  is  therefore  clearly 
the  duty  of  an  officer,  after  he  has  once  entered  upon 
the  execution  of  an  attachment,  to  complete  its  execu- 
tion with  diligence.  In  the  case  of  Wheaton  v.  Nev- 
ille, et  al.,  the  writ  of  attachment  was  issued  at  the 
commencement  of  the  action  of  Scott,  Vantine  and 
others  against  Brown,  on  the  26th  of  August,  and  a 
copy  was  delivered  to  the  occupant  of  the  premises 
on  the  29th  of  the  same  month.  (The  statute  at  that 
time  required  service  on  the  property  before  filing 
with  the  recorder.)  On  the  29th  of  August,  the  writ 
was  returned  with  a  certificate  of  the  sheriff's  proceed- 
ings, and  filed  in  the  clerk's  office ;  but  no  copy  of  the 
writ,  with  a  description  of  the  property,  was  filed  with 
the  recorder  until  the  9th  of  September  following. 
On  the  6th  of  September,  one  Dimock  purchased  and 
took  a  conveyance  of  the  premises  from  Brown,  and 
the  question  for  determination  was,  whether  the  sub- 
sequent filing  of  the  papers  in  the  recorder's  office 
o-ave  effect  to  the  attachment  from  the  date  of  the 
posting  or  delivery  of  the  copy  of  the  writ,  so  as  to 
create  a  lien  upon  the  premises.  The  supreme  court 
decided  that  the  filino-  in  the  recorder's  office  had  no 

O 

such  effect;  that  after  the  return  of  the  writ  to  the 
clerk's  office,  the  sheriff  had  no  authority  to  take  any 
proceedings  for  the  completion  of  the  attachment, 
which  he  had  previously  omitted.  Its  efficacy,  as  a 
warrant  of  authority  to  him,  was  limited  to  acts  per- 
formed whilst  it  remained  in  his  possession. 

§  82.       Lien    on    Real    Estate,    when    takes 


§  S^  ATTACHMENT  ON  REAL  ESTATE.  80 

Effect. — The  lien  of  an  attaching  creditor  of  real  es- 
tate takes  effect  immediately  upon  the  levy  of  the  at- 
tachment, and  a  deposit  of  a  copy  of  the  writ,  together 
with  a  description  of  the  land  attached,  with  the  county 
recorder.      (Ritter  v.  Scannell,  1 1  Cal.  239.) 

Under  the  old  law,  as  interpreted  in  the  above,  the 
service  on  the  occupant  or  posting  on  the  property  was 
required  to  be  done  before  filing  with  the  recorder. 
The  practice  is  reversed  under  the  present  law. 

Such  lien  cannot  be  diverted  by  the  failure  of  the 
sheriff  to  make  a  proper  return  of  the  writ. 

Our  statute  prescribes  the  manner  in  which  real  es- 
tate may  be  attached,  but  contains  no  express  provision 
requiring  that  all  the  acts  necessary  to  a  valid  levy 
shall  be  set  out  in  the  return ;  nor  can  such  a  rule  be 
sustained. 

The  deposit  in  the  recorder's  office  of  a  copy  of  the 
writ,  with  a  description  of  the  property  attached,  is 
sufficient  to  operate  as  notice  of  the  lien  to  third  par- 
ties.    (Ritter  v.  Scannell,  1 1  Cal.  239.) 

§  S2,.     How  Attachment  may  be   Released. — 

Until  the  year  1876,  there  was  no  method  prescribed 
by  statute  for  the  release  of  an  attachment  upon  real 
estate  on  the  records  of  the  county  in  which  the  prop- 
erty was  situated.  At  the  session  of  the  legislature  in 
that  year,  a  clause  was  added  to  section  559  of  the 
Code  of  Civil  Procedure,  providing  that  "whenever  an 
order  has  been  made  discharging  or  releasing  an  attach- 
ment on  real  property,  a  certified  copy  of  such  order  may 
be  filed  in  the  offices  of  the  county  recorders  in  which  the 
notices  of  attachment  have  been  filed,  and  be  indexed  in 
like  manner,"  It  then  became  quite  generally  the  cus- 
tom, among  sheriffs  and  constables,  to  release  attach- 


8  I  ATTACHMENT  ON  REAL  ESTATE.  §  84 

ments  upon  real  property  by  filing  with  the  county 
recorder  a  certified  copy  (certified  by  the  officer)  of  the 
order  of  plaintiff's  attorney  to  release  the  attachment. 
This  was  held,  not  only  by  many  attorneys  and  officers, 
but  also  by  searchers  of  records,  to  be  a  valid  release. 
But  an  opinion  was  filed  in  the  case  of  Smith  v.  Robin- 
son, May  II,  1883,  in  which  the  supreme  court  held 
that  the  code  authorizes  no  release  or  discharge  of  an 
attachment  upon  real  property,  except  by  ordej-  of 
court.  It  may  be  admitted  (say  the  court)  that  under 
our  system  of  practice,  the  attorney  for  plaintiff  may 
consent  to  an  order  releasing  an  attachment,  but  the 
code  authorizes  no  release  except  by  order  of  court. 
Subsequently,  however,  on  the  27th  of  December, 
1883,  the  supreme  court,  in  bank,  reversed  the  decision 
referred  to,  deciding  that  a  plaintiff,  without  order  of 
court,  may  direct  the  sheriff  to  release  real  property 
attached. 

§  84.  Return  of  Attachment. — A  sheriff  has  no 
rip-ht,  after  making  a  return,  to  amend  it  so  as  to  affect 
rights  which  have  already  vested.  (Newhall  v.  Provost, 
6  Cal.  85.)  The  return  on  attachment  cannot  be 
amended  so  as  to  postpone  the  rights  of  creditors  at- 
taching subsequently,  but  before  the  correction.  (Web- 
ster V.  Haworth,  8  Cal.  21 ;  Nev^^hall  v.  Provost,  6  Cal. 
85.)  It  is  the  duty  of  the  sheriff,  when  returning  an 
attachment  of  real  propert}^  to  indorse  thereon  what 
acts  he  performed  in  serving  the  writ,  and  it  will  be 
presumed  that  he  states  all  that  he  did  tow^ards  making 
the  service. 

Where  an  officer,  by  virtue  of  a  second  attachment, 
levies  on  property  already  in  his  possession  by  virtue 
of  a  former  attachment,  it  is  only  necessary  for  him  to 
6 


§  84  attachmp:nt  on  real  estate.  82 

return  that  he  has  attached  the  interest  of  the  defend- 
ant in  the  property  then  in  his  possession.  (O'Connor 
V.  Blake,  29  Cal.  313.)  While  such  a  return  may  be 
only  necessary,  it  would  be  proper  and  more  satisfac- 
tory' to  parties  interested  who  desire  information  re- 
garding the  officer's  proceedings,  to  state  in  the  return 
that  the  property  was  attached  subject  to  levy  under 
certain  prior  writs.  The  plaintiff  should  be  enabled  to 
ascertain,  from  the  return  on  file  in  the  clerk's  office, 
what  advantages  he  has  gained  under  the  writ ;  and 
where  a  return  only  states  a  portion  of  the  officer's 
proceedings,  it  is  liable  to  mislead. 


CHAPTER   VII. 

ATTACHMENT    ON    PERSONAL    PROPERTY. 

§    85.  Receiving  the  Writ. 

§    86.  Responsibility  in  Service  of  Process. 

§    87.  Liability  from  Delay. 

§    88.  Undertaking  Removes  Sheriff's  Liability. 

§    89.  Form  of  Undertaking. 

§    90.  Original  Writ  kept  in  Office. 

§    91.  Authority  of  Oiilicer  in  Levying. 

§    92.  What  may  be  Levied  Upon. 

§    93.  Void  Levy. 

§    94.  Void  Levy  on  Insolvent's  Property. 

§    95.  How  Insolvency  Proceedings  Affect  Attachment. 

§    96.  What  Constitutes  a  Valid  Levy. 

§    97.  Property  must  be  Taken  into  Custody. 

§    98.  Attached  Property  in  Custody. 

§    99.  Property  must  be  within  View  of  Officer. 

§  100.  Attachment  Lien  Dependent  on  Possession. 

§  loi.  Prior  Liens  must  be  satisfied. 

§  102.  Waiver  of  Warehouseman's  Lien. 

§  103.  Sales  Prohibited  Under  Attachment. 

§  104.  Keepers'  Fees. 

§  105.  Removal  of  Attached  Property. 

§  106.  Retaking  Goods  from  Officer. 

§  107.  Penalty  for  Obstructing  Officer. 

§  108.  Excessive  Levy. 

§  109.  Surplus  Property  Returned  to  Defendant. 

§  no.  Sheriff  Liable  for  Loss  by  Negligence. 

§111.  Authority  to  Conduct  Business  in  Attachment. 

§112.  Authorit}^  of  Deputy. 


§  85  ATTACHMENT  ON  PERSONAL  rROPERTV.  84 

Partnersliip  Property. 

Attachment  of  Stocks. 

Garnishment  of  Stocks. 

Property  not  Capable  of  Manual  Delivery. 

Attachable  Interest  in  Leased  Property. 

Attaching  Goods  in  Hands  of  Third  Parties. 

Pledge  of  Goods — Rights  of  Pledge. 

The  Ciarnishment. 

Notice  to  Garnishee. 

E.xamination  of  Garnishee. 

Garnishment  of  Sum  Due  for  Homestead. 

Liability  of  Garnishee. 

When  Garnishment  not  a  Lien. 

Sale  of  Perishable  Proi)erty. 

Sheriffs  Receipt  a  Discharge. 

Sales  by  Order  of  Court. 

Fraudulent  Tranfers. 

Officer's  Right  to  Indemnity. 

Trial  by  Sheriff's  Jury. 

Sheriff  as  Agent. 

Verdict  of  Sheriff's  Jury  no  Protection  to  Officer. 

Summoning  Sheriff's  Jury. 

Joint  Trespassers. 

Property  Released  by  Judgment  for  Defendant. 

Judgment  for  Defendant  Dissolves  Attachment. 

Death  of  Defendant  Destroys  Attachment  Lien. 

Release  of  Personal  Property. 

Return  of  Writ. 

What  the  Return  should  Contain. 

§  85.  Receiving  the  Writ. — An  attachment  is  a 
process  under  which  the  debtor's  property  may  be 
seized  and  held  as  security  for  the  satisfaction  of  any 
judgment  that  may  be  recovered  against  him  in  the 
action,  unless  he  gives  security  for  the  payment  of  the 
jud^-ment,  in  the  manner  provided  by  the  statute.  The 
purpose  of  the  lien  is  to  secure  the  payment  of  the 
judgment,  and  this  is  accomplished  by  its  holding  the 
property  until  the  judgment  is  rendered — and  in  case 


>^ 

113- 

^ 

114. 

§ 

115- 

S 

116. 

^ 

117. 

S 

118. 

^ 

119. 

§ 

120. 

§ 

121. 

^ 

122. 

^ 

123. 

S 

124. 

^ 

125. 

§ 

126. 

^ 

127. 

^ 

128. 

§ 

129. 

^ 

130. 

S 

131- 

^ 

132. 

§ 

133- 

§ 

134- 

§ 

135- 

§ 

136. 

§ 

137- 

§ 

138. 

§ 

139- 

§ 

140. 

§ 

141. 

85  ATTACHMENT  ON  PERSONAL  PROPERTY.  §  85 

of  real  property,  until  the  judgment  is  or  may  be 
docketed — so  that  the  attached  property  may  be  taken 
and  sold  under  an  execution  to  be  issued  on  the  judg- 
ment. 

No  property  may  be  taken  in  attachment  that  is  not 
liable  to  seizure  under  the  execution  when  issued,  and 
the  only  way  in  which  the  levying  of  the  attachment 
upon  the  property  operates  as  security  for  the  satis- 
faction of  the  anticipated  judgment,  is  by  its  capacity 
to  hold  the  property  to  await  the  execution  to  be  issued. 
This  is  necessarily  implied  by  section  550,  Code 
Civil  Procedure,  providing  for  the  sale  of  the  attached 
property,  and  no  other  mode  than  a  sale  under  execu- 
tion is  provided  by  the  statute,  for  enforcing  the 
attachment  lien  upon  property  held  under  the  writ. 
Property  that  has  been  converted  into  money,  because 
the  interest  of  the  parties  required  its  sale  while 
held  under  attachment,  forms  no  exception  to  the 
usual  course  of  proceedings  respecting  property  held 
under  attachment,  for  the  money  in  the  officer's  hands, 
though  not  required  to  be  levied  upon  under  execu- 
tion, because  not  required  to  be  sold,  can  be  applied 
to  the  satisfaction  of  the  judgment  only  when  the 
plaintiff  is  entitled  to  an  execution,  and  it  is  appro- 
priated in  the  same  manner  as  when  made  under  the 
execution. 

Personal  property,  capable  of  manual  deliver)',  must 
be  attached  by  taking  it  into  custody.  (§  542  C.  C.  P.) 
This  is  a  plain,  mandatory  provision  of  the  law.  It 
must  be  taken  into  actual  custody,  and  no  unnecessary 
time  should  be  lost  in  executing  the  writ.  It  not  un- 
frequently  happens  that  the  defendant  in  the  action  has 
become  suspicious  that  proceedings  are  about  to  be 
taken  against  his  property,  and  that  to  avoid  the  an- 


§  86      ATTACHMENT  ON  PERSONAL  PROPERTY.        86 

ticipated  seizure  he  is  seeking-  to  transfer  his  effects. 
In  such  cases,  moments  of  time  lost  represent  property 
fleeting  as  with  wings,  and  the  creditor  is  thus  moment- 
arily in  danger  of  losing  his  debt.  The  object  of  the 
writ  is  to  enable  him  to  secure  his  claim,  if  it  be  a  just 
one,  and  the  law  places  the  services  of  the  officer  at 
his  command  to  accomplish  that  purpose.  After  care- 
fully inspecting  the  writ  to  assure  himself  that  it  is  in 
due  form,  and  complying  with  the  legal  requirements 
relating  to  his  fees  for  service,  the  officer  must  endorse 
upon  the  writ  the  time  of  its  reception.  He  should 
proceed  at  once  to  the  place  indicated  to  him  as  the 
location  of  the  property,  and  take  it  into  custody,  un- 
less the  defendant  give  him  the  statutory'  undertaking 
to  prevent  the  attachment. 

§  86.  Responsibility  in  Service  of  Process. — 
The  supreme  court  has  declared,  in  the  case  of 
Whitney  et  al.  v.  Butterfield  et  ai.,  13  Cal.  336,  that  in 
the  service  of  process  the  sheriff  is  responsible  only 
for  unreasonably,  or  not  reasonably,  executing  it;  that 
he  is  not  bound  to  start  on  the  instant  of  receiving  a 
writ  to  execute  it,  without  regard  to  anything  else. 
Where  one  writ  of  attachment  was  placed  in  the  sher- 
iff's hands  on  Sunday,  and  another  against  the  same 
defendant  was  placed  in  the  hands  of  a  deput)^  at  a 
quarter  past  twelve  on  Monday  morning,  the  sheriff 
not  knowing  the  fact,  and  the  first  levy  was  made  under 
the  last  writ  at  one  o'clock  Monday  morning,  the  sher- 
iff was  not  guilty  of  negligence  in  executing  the  first 
^vrit — no  special  circumstances  being  shown.  As  the 
case  above  referred  to  contains  several  points  of  inter- 
est, the  decision  is  herewith  given  in  full : 

"This  question  touches  the  liabilit)' of  the  sheriff  for 


Sj  ATTACHMENT  ON  PERSONAL  PROPERTY.  §  86 

not  levying  an  attachment  put  in  his  hands  on  Sunday ; 
the  goods  of  defendant  having  been  seized  by  his  dep- 
uty on  Monday,  though  the  last  writ  came  to  his  hands 
early  on  the  same  day,  and  was  levied  on  the  property 
which  was  disposed  of  by  the  last  writ — so  that  the  first 
remained  unsatisfied.  The  principles  which  determine 
this  case  we  think  somewhat  different  from  those  argued 
at  the  bar. 

"The  sheriff's  liability  rests  on  his  breach  of  official 
duty.  As  he  is  bound  to  perform  his  duty,  so  is  he 
responsible  to  everyone  who  may  be  injured  by  his 
failure  to  discharge  it.  In  respect  to  the  execution  of 
process,  these  official  duties  are  well  defined  by  law. 
The  law  is  reasonable  in  this,  as  in  all  other  things. 
It  holds  public  ofiicers  to  a  strict  performance  of  their 
respective  duties.  It  tolerates  no  wanton  disregard  of 
these  duties.  It  sanctions  no  negligence ;  but  it  re- 
quires no  impossibilities  and  imposes  no  unconscion- 
able exactions.  When  process  of  attachment  or  exe- 
cution comes  to  the  hands  of  the  sheriff,  he  must  obey 
the  exigency  of  the  writ.  He  must,  in  such  cases,  exe- 
cute the  writ  with  all  reasonable  celerity.  Whenever 
he  can  make  the  money  on  execution,  or  secure  the 
debt  by  attachment,  he  must  do  it.  But  he  is  not  held 
to  the  duty  of  starting  on  the  instant  after  receiving  a 
writ,  to  execute  it,  without  regard  to  anything  else  than 
its  instant  execution.  Reasonable  diligence  is  all  that 
is  required  of  him  in  such  instances.  But  this  reason- 
able diligence  depends  upon  the  particular  facts  in  con- 
nection with  the  duty.  If,  for  example,  a  sheriff  has 
execution  against  A.,  and  has  no  special  instruction  to 
execute  it  at  once,  and  there  is  no  apparent  necessity 
for  its  immediate  execution,  it  would  not  be  contended 
that  he  was  under  the  same  obligations  to  execute  it 


§  86      ATTACHMENT  ON  PERSONAL  PROPERTY.        88 

instantaneously  as  if  he  were  so  instructed  and  there 
were  circumstances  of  urgency.  So,  in  respect  to  an 
attachment.  If  an  attachment  were  sued  out  on  the 
ground  of  a  defendant's  fraud,  or  his  being  in  the  act 
of  leaving  the  state,  or  removing  his  property,  the  very 
fact  of  the  issuance  of  the  attachment,  or  the  making 
of  the  affidavit,  would  seem  to  indicate  to  the  officer  the 
necessity  of  immediate  action.  But,  generally,  in  the 
absence  of  special  circumstances,  an  attachment  issued 
for  the  security  of  a  debt,  under  the  old  statute  author- 
izing such  a  process,  does  not  stand  upon  a  more  favor- 
able footing,  so  far  as  regards  the  necessity  of  immedi- 
ate service,  than  an  execution. 

''It  is  true  the  statute  (Wood's  Dig.  183,  §  125,) 
directs  that  the  sheriff  'shall  execute  the  writ  of 
attachment  without  delay ; '  but  this  was  not  intended 
to  introduce  a  new  rule.  The  expression,  '  without 
delay,'  does  not  mean  that  the  sheriff  shall,  the 
instant  he  receives  process  of  this  sort,  lay  aside  all 
other  business  and  proceed  to  execute  it,  unless  some 
special  reasons  of  urgency  exist.  The  rule  is  thus 
stated  by  the  Supreme  Court  of  New  York,  in  Hin- 
man  :'.  Borden,  (10  Wend.  367):  'A  sheriff  is  bound 
to  use  all  reasonable  endeavors  to  execute  process.' 
It  is  true  that  some  authorities  hold  the  rule  with  more 
strictness.  In  Lindsay's  Executors  v.  Armfield,  (  3 
Hawks,  N.  C.)  the  sheriff  was  held  liable  for  not  levy- 
ing from  7th  October  to  ist  November,  following — 
no  explanation  being  offered  for  the  failure.  Mr. 
Justice  Hall  says,  'the  law  declares  it  to  be  the  duty  of 
the  sheriff  to  execute  all  |)rocess  which  comes  to  his 
hands,  with  the  utmost  expedition,  or  as  soon  after  it 
comes  into  his  hands  as  the  nature  of  the  case  admits,' 
and  cites  Bacon  Abridg.  Sheriff  N.     That  author  holds 


89        ATTACHMENT  ON  PERSONAL  PROPERTY,      §  86 

the  doctrine  in  the  same  language  as  that  quoted.  Mr. 
Justice  Henderson,  in  the  case  in  Hawks,  states  the 
doctrine  a  Httle  different.  He  says:  'The  sheriff 
should  proceed  with  all  convenient  speed  to  levy  the 
execution.'  The  learned  American  editor  of  Bacon 
cites,  in  support  of  the  doctrine  of  the  text,  several 
cases,  which  we  have  examined.  None  of  them  sus- 
tain the  rule  in  its  strictness,  even  if  we  are  to  reo^ard 
the  doctrine  of  Bacon  as  laying  down  a  different  rule, 
so  far  as  the  liability  of  the  sheriff  is  concerned,  from 
that  held  in  Wendell  and  other  cases ;  for  Bacon  says, 
the  '  sheriff  must  not  show  any  favor,  nor  be  guilty  of 
unreasonable  delay.'  In  Kennedy  v.  Brent,  (6  Cranch, 
187,)  C.  J.  Marshall  holds  that  the  marshal  is  bound  to 
serve  the  process  as  soon  as  he  reasonably  can, 

"The  question  of  unreasonable  delay  is  a  mixed 
question  of  law  and  fact,  each  case  depending  on  its 
own  circumstances ;  for,  as  we  said  before,  the  speed 
with  which  the  sheriff  must  proceed  may  depend  upon 
the  apparent  necessity  for  quick  action.  But  we  have 
found  no  case  which  holds  that  the  mere  delay  of  a 
few  hours,  without  some  showing  of  special  urgency, 
has  been  held  sufficient  to  charge  the  sheriff.  If  we 
suppose,  then,  that  the  process  reached  the  hands  of 
the  principal  sheriff  at  one  o'clock  on  Monday  morn- 
ing, we  do  not  perceive  that  the  sheriff  would  have 
been  liable — nothing  else  appearing — for  failure  to 
levy  it  before.  But  the  particular  facts  of  this  case 
make  it  stronger  for  the  sheriff.  The  attachment  of 
plaintiff  was  placed  in  the  principal  sheriff's  hands  on 
the  night  of  Sunday  between  nine  and  ten  o'clock. 
But  it  did  not  legally  come  to  his  hands  as  sheriff  and 
for  service  until  twelve  o'clock.  Fifteen  minutes  after 
twelve  the  other  attachment  came  to  the  hands   of  the 


§  86      ATTACHMENT  ON  PERSONAL  PROrERTV.        9O 

deputy ;  of  this,  it  seems,  the  sheriff  had  no  notice ; 
and  the  deputy  levied  it  at  or  about  one  o'clock.  It 
seems,  then,  that  the  laches  of  the  sheriff  in  delaying 
this  levy  for  an  hour  at  midnight,  is  the  foundation 
of  his  liability.  This  would  be  too  harsh  and  unreas- 
onable a  requisition.  It  is  plausibly  argued  that  the 
deputy'  and  his  principal  are  the  same  person  in  law ; 
and  that  the  attachment  in  the  hands  of  the  defendants 
is,  in  legal  effect,  in  the  hands  of  the  principal ;  and, 
consequently,  the  case  is  that  of  an  officer  having  a 
senior  writ  and  levying  a  junior  writ  on  the  property 
of  the  defendant.  But  the  answer  to  this  argument 
is,  that  here  the  question  is  one  of  diligence ;  and  that 
it  cannot  be  contended  that  the  mere  omission  of 
the  deputy  to  inform  the  principal  of  his  having  pro- 
cess is  such  neelisrence  as  to  charo-e  him. 

"We  have  seen  that  the  sheriff  is  not  absolutely 
responsible  for  not  executing  process  of  this  sort.  He 
is  responsible  for  unreasonably  or  not  reasonably  exe- 
cuting such  process.  But  the  test  is,  was  a  failure,  in 
the  absence  of  any  special  circumstances,  to  execute 
this  process,  unreasonable,  or  did  it  subject  the  sheriff 
to  responsibility  for  the  debt?  We  may,  in  this  con- 
nection, leave  out  of  question  the  discussion  as  to  the 
day  (Sunday)  on  which  the  writ  of  the  plaintiff  was 
received.  It  is  certain  that,  for  all  judicial  purposes, 
Sunday  is  no  day  at  all.  The  sheriff  need  not,  on 
that  day,  indorse  on  the  writ  the  fact  of  its  reception. 
If  given  to  him  on  that  day  he  did  not  receive  it  as  an 
officer,  but  as  the  mere  agent  of  the  plaintiff.  He 
could  do  nothing  with  it  on  that  day.  He  might,  if  he 
chose,  recognize  the  receipt  of  it,  but  it  imposed  on 
him  no  higher  or  other  duties  than  if  he  had  received 
it  on  the  next  day.     He,  for  all  practical  purposes,   so 


91  ATTACHMENT  ON  PERSONAL  PROPERTY.  §  86 

far  as  respects  this  writ,  was  not  the  sheriff  at  all  on 
Sunday.  But  we  may  safely  concede,  for  all  pur- 
poses of  this  suit,  that  he  received  the  process  on  the 
next  day,  and  even  at  the  beginning  of  that  day. 
Was  he  bound,  then,  on  this  assumption,  to  go  on 
and  execute  the  writ,  immediately  after  having  received 
it,  no  peculiar  necessity  or  apparent  reason  being 
shown  why  he  should  do  so?  No  authorities  have 
been  cited  to  show  that  a  sheriff  is  bound  to  quit 
everything  else,  immediately,  on  receiving  an  attach- 
ment or  execution,  and  proceed  to  levy. 

"The  deputy  had  received  Clark  &  Co.'s  attach- 
ment early  in  the  morning  of  Monday;  perhaps  at 
the  very  instant  which  marked  the  period  which 
separated  Sunday  from  Monday  in  the  computation 
of  time.  But  though  Whitney's  writ  was  in  the  hands 
of  the  sheriff  before  this  time,  yet  the  sheriff  could 
do  nothing  with  it — did  not  legally  even  receive  it  in  his 
official  capacity  before.  His  connection  with  the  writ 
of  Whitney,  as  sheriff,  commenced  at  the  very  time 
— at  the  utmost — when  his  deputy  had  the  writ  of 
Clark.  But  if  Clark  had  no  writ,  we  do  not  see 
that  the  sheriff  would  have  been  bound  to  go  at 
once,  on  the  instant  when  Monday  commenced,  and 
levy  on  the  property  of  the  defendants  in  attachment. 
Nor  was  the  sheriff  bound  to  the  degree  of  diligence 
which  required  him  to  communicate  to  his  deputy 
the  intellieence  that  he  had  received  the  writ  of 
Whitney  before  the  deputy  levied  the  process  of 
Clark.  Attachments  do  not  bind  the  property  of  the 
defendant  from  the  time  of  the  issuance,  but  only 
from  the  time  of  the  actual  levy,  and  the  attachment 
first   levied,  by  our  statute,  has  the  priority'. 

"  But,  probably,  we  might  put  this  case  on  a  broader 


§  86  ATTACHMENT  ON  PERSONAL  PROPERTY.  92 

ground.     The  sheriff  could  no  more  officially  receive 
a  writ  on  Sunday  for  service  on  Sunday,  than  he  could 
execute  it  on  Sunday.      Both   these  acts   are  of   the 
same  general  character,  and  equally  within  the  pro- 
hibition   of    the    statute.       Not    receiving   it  then   as 
sheriff,  he  received  it  as  the  mere  agent  of  the  plain- 
tiff.    He  so  received  it,  not  to  execute  it  on  Sunday, 
or  to  deal  with  it  as  a  writ  coming  to  him  on  that  day 
as  an  officer.     He  might  have  been  bound,  as  an  agent, 
to  deliver  it  to  the  sheriff,  or  to  treat  it  as  delivered 
when  he  could  act.     But  this  was  a  personal,  not  an 
official  contract ;  it  was  a  mere  bailment  which  bound 
him,   probably,    as   a   man,   but  did   not   bind   him   as 
a  sheriff,  and,  if  he  chose  to  disregard  it  entirely,  we 
do  not  see  that  he  would  be  bound  as  an  officer.     It  is 
not  necessary  to  press  this  point,  for  the  reason  that  if 
he  was  bound  to  consider  it  as  placed  in  his  hands  on 
Monday,  at  one  o'clock,  there  was  no  such  negligence 
in  failing  to  execute  it  before,  as  to  subject  him  to  lia- 
bilit}^     It  is  true  that  it  may  be  urged  that  the  sheriff 
and  the  deputy  are  one  person  in  law ;  true,  so  lar  as 
this,  that  the  sheriff  is  responsible  for  the  acts  of  the 
deputy  ;  but  no  one  would  contend  that  if  a  sheriff  has 
a  deputy  at  a  remote  precinct  of  a  county,  and  a  writ 
is  placed  in  his  hands,  and  he  executes  it  on  property 
in  his  precinct,  that  the   sheriff  would   be   responsible 
for  this,  if  the  consequence  were  to  deprive  B  of  the 
recovery  of   a   claim,   as   the   result  of  this   levy — B 
having  put  a  writ  in  the  hands  of  the  sheriff,  at  the 
county  seat,  an  hour  before  the  writ  was  placed  in  the 
hands  of  the  deputy.     Whitney  trusted  the  sheriff  to 
consider  that  the  writ  would  be  in  his  hands  on   Mon- 
day, and  to  receive  and  execute  it  as  if  it  were  handed 
to  him  on  that  day ;  but  even  if  it  had  been,  the  sheriff 


93      ATTACHMENT  ON  PERSONAL  PROPERTY.   §§  87,  88 

was  not  bound  to  get  out  of  his  bed  (no  special  cir- 
cumstances existing)  on  the  morning  of  that  day,  at 
one  o'clock,  and  immediately  proceed  to  the  execution 
of  the  writ.  It  would  be  unjust  to  hold  the  sheriff  to 
this  degree  of  diligence,  and,  we  think,  illegal.  We 
reverse  the  judgment  and  remand  the  case." 

§  87.  Liability  from  Delay. — In  proceeding  to 
make  a  levy  upon  personal  property,  if  the  defendant 
express  a  wish  to  give  the  undertaking  mentioned  in 
section  540,  Code  of  Civil  Procedure,  the  officer  may 
exercise  his  judgment  as  to  whether  he  can  safely  ab- 
stain from  levying  until  the  defendant  shall  have  had 
sufficient  time  to  get  his  sureties  and  execute  the  un- 
dertaking. In  deferring  a  levy,  however,  the  officer 
does  so  at  his  own  risk.  The  property  is  within  his 
reach,  and  he  becomes  responsible  to  the  plaintiff  for 
whatever  loss  maybe  sustained  by  reason  of  his  neglect. 
In  going  to  make  a  levy  upon  personal  property,  the 
officer  will  sometimes  find  it  convenient  to  have  with 
him  a  blank  undertaking  to  prevent  attachment,  and, 
also,  a  blank  undertaking  for  the  release  of  an  attach- 
ment. It  is  not  obligatory  upon  him  to  have  such  blanks 
with  him,  but  much  time  and  annoyance  may  sometimes 
be  saved  by  having  them  at  hand,  where  the  defendant 
wishes  to  retain  the  custody  of  his  property. 

§  88.  The  Undertaking  Removes  the  Sheriff's 
Responsibility. — When  the  sheriff  takes  a  sufficient 
statutory  undertaking,  as  provided  for  in  section  540, 
Code  of  Civil  Procedure,  to  prevent  an  attachment  or 
to  release  property  already  attached,  his  duty  in  the 
premises  is  discharged,  and  he  has  no  further  responsi- 
bility in  the  matter,      (Curiae  v.  Packard,  29  Cal.  194: 


§§  89-9 1       ATTACHMENT  ON  PERSONAL  PROPERTY.  94 

also,   Preston  r.   Hood,   opinion    filed    December   29, 
1883.) 

§  89.  Form  of  Undertaking. — A  common  law 
bond,  in  form,  upon  the  prescribed  statutory  conditions, 
given  to  a  sheriff  to  procure  a  discharge  of  goods  at- 
tached, is  a  sufficient  compliance  with  the  provisions  of 
the  statute.  (Curiae  v.  Packard,  29  Cal.  194.)  In  this 
case,  the  court  decide  that  the  undertaking,  if  sufficient, 
is  to  be  taken  by  the  sheriff  when  the  property  /las  been 
as  w^ell  as  when  it  is  about  to  be  attached. 

§  90.  Original  Writ  should  be  kept  in  Sheriff's 
Office. — The  code  does  not  require  that  the  sheriff 
shall  give  an  attaching  creditor  notice  of  the  levy  of  his 
attachment.  Nor  need  he  serve  a  copy  of  the  writ 
upon  the  defendant.  He  is  entitled  to  a  copy  if  he 
demand  it,  upon  payment  of  the  lawful  fee  therefor ; 
but  if,  in  the  exigency  of  haste  to  make  the  le\y,  the 
officer  have  no  copy  with  him  at  the  time,  it  may  be  de- 
livered to  him  thereafter.  The  officer  should  make  the 
levy  with  a  copy  of  the  writ,  leaving  the  original  writ, 
in  all  cases,  at  his  office. 

§91.  Authority  of  the  Officer  in  Levying. — The 
writ  commands  the  officer  to  attach  and  safely  keep  all  the 
property  of  the  defendant  within  the  county  not  exempt 
from  execution,  or  so  much  thereof  as  may  be  sufficient 
to  satisfy  the  plaintiff's  demand,  unless  the  defendant 
gives  an  undertaking,  as  provided  in  section  540  of  the 
Code  of  Civil  Procedure.  If  the  property  to  be  at- 
tached is  in  a  store,  he  may  seize  and  take  away  suffi- 
cient of  the  stock  of  goods  to  meet  the  requirements 
of  the  writ.     He  may  attach  money  in  a  drawer  or  safe 


95  ATTACHMENT  ON  PERSONAL  PROPERTY.  §  9  I 

or  wherever  found,  but  he  cannot  take  property  from 
the  person  of  the  defendant,  except  it  be  money  or 
other  valuables  in  a  bag  or  package  in  the  hand  of  the 
defendant.  He  may  not  break  open  the  outer  door  or 
window  of  a  dwelling  house  to  make  a  levy,  nor  gain 
admission  thereto  by  even  lifting  the  latch  of  an  outer 
door.  But,  if  after  gaining  peaceable  and  lawful  admis- 
sion to  the  house,  and  there  is  property  of  the  defendant 
therein,  he  may  take  it  even  if  he  be  compelled  to 
break  the  inner  doors  of  the  house  to  reach  it.  If 
property  to  be  attached  is  in  a  building  other  than  a 
dwelling,  he  may  use  whatever  force  may  be  necessary 
to  enable  him  to  serve  the  writ,  but  he  must  first 
announce  his  office  and  business  and  make  demand 
for  admission.  If  resistance  is  made  to  the  service,  he 
may  call  to  his  aid  whatever  assistance  is  needful. 
But  he  should  not  go  away  from  the  place  where  the 
property  is  situated,  to  procure  aid,  if  he  can  avoid 
doing  so,  for  he  will  do  so  at  the  risk  of  losing  the 
goods  during  his  absence.  Personal  property  is  not 
attached  until  it  is  within  the  view  of  the  officer.  The 
mere  formality  of  standing  at  an  outer  door  of  a 
building  in  which  goods  are  situated,  and  placing 
o-uards  or  keepers  around  the  building  does  not  con- 
stitute a  levy. 

The  extent  to  which  an  officer  may  proceed,  in  the 
use  of  force,  in  the  breaking  into  a  building,  to  levy 
upon  the  goods  of  a  debtor,  has  not  been  determined 
by  any  supreme  court  decisions  of  this  State.  Although 
a  man's  dwelling  is  by  law  deemed  to  be  his  castle  and 
sacred  from  intrusion,  it  is  not  so  with  his  warehouse, 
store,  or  place  of  business.  It  has  been  definitely 
settled  in  many  of  the  older  States  whose  laws  are 
similar  to  those  of  California,  that  an  officer  cannot 


§  92  ATTACHMENT  ON  PERSONAL  PROrERTV.  96 

break  open  the  outer  door  of  the  defendant's  dweUing, 
nor  even  Hft  the  latch  thereof  to  gain  admission,  to 
seize  the  defendant's  property.  After  having  gained 
peaceable  entrance,  however,  he  may  break  the  inner 
doors,  closets,  drawers,  boxes,  chests,  or  trunks,  to 
seize  property.  In  all  cases  where  force  may  be  used, 
the  officer  should  first  demand  admission.  The  outer 
door  of  the  defendant's  store  or  other  place  of  business 
may  be  broken  open  by  an  officer  to  enable  him  to 
make  a  lev}^  but  all  undue  violence  should  be  avoided 
when  possible. 

§  92.  What  may  be  Levied  upon. — Plaintiff 
was  walking  along  the  street  with  a  bag  of  gold  coin 
in  his  hand.  Two  of  defendants,  a  deputy  sheriff  and 
constable,  seized  him,  and  by  force  took  the  bag  of 
coin  from  him.  The  court  held  (Green  z>.  Palmer,  15 
Cal.  412)  that  from  its  seizure  thus  situated,  the 
plaintiff  could  not  claim  any  exemption,  as  he  might 
perhaps  do  in  reference  to  money  upon  his  person. 
Thus  situated,  it  was  like  a  horse  held  by  its  bridle, 
subject  to  seizure  under  execution  against  its  owner. 

As  indicating  an  instance  wherein  money  in  the 
hands  of  a  bailee  may  be  attached,  the  case  of  Chandler 
V.  Booth,  1 1  Cal.  342,  is  cited.  Where  A.,  who  carried 
on  a  printing  office,  and  was  indebted  to  the  hands  of 
the  office,  placed  in  the  hands  of  B.  a  certain  amount 
of  money,  with  directions  to  B.  to  pay  the  hands,  which 
B.  neelected  to  do,  and  where  there  was  no  evidence 
showing  that  the  hands  agreed  to  look  to  B.  for  their 
money,  or  that  A.  was  indebted  to  the  hands  in  an 
amount  equal  or  approximate  to  the  sum  in  B.'s  hands, 
and  the  money  was  subsequently  attached  in  the  hands 
of  B.  at  the  suit  of  C.  against  A.,  it  was  held  that  the 
money  was  liable  to  the  attachment. 


97 


ATTACHMENT  ON  PERSONAL  PROPERTY.  §  9; 


The  sheriff  cannot  attach  money  collected  on  execu- 
tion in  his  own  hands  ;  if  at  any  time  such  money  is 
subject  to  other  process  in  his  hands,  such  process 
must  be  executed  by  the  coroner.  (Clymer  v.  Willis, 
3  Cal.  363.) 

Money  in  the  hands  of  the  sheriff,  collected  on 
execution,  is  not  a  debt  due  to  the  plaintiff  in  the 
execution,  but  is  in  the  custody  of  the  law  until  pro- 
perly disposed  of,  and  is  not  the  subject  of  attachment 
or  garnishment.     Id. 

The  indebtedness  of  the  maker  upon  a  promissory 
note,  before  its  maturity,  is  not  the  subject  of  attach- 
ment. His  obligation  is  not  to  the  payee  named  in 
the  note,  but  to  the  holder,  whoever  he  may  be.  Nor 
can  such  indebtedness,  after  the  maturity  of  the  note, 
be  attached,  unless  the  note  is  at  the  time  in  the 
possession  of  the  defendant,  from  whom  its  delivery 
can  be  enforced  on  its  payment  upon  the  attachment. 
(Gregory  v.  Higgins,  lo  Cal.  339.) 

Property  in  the  custody  of  the  law,  or  in  the  hands 
of  a  receiver  appointed  by  a  competent  court,  is  not 
liable  to  seizure  without  an  order  from  the  court 
having  charge  thereof.  (Yuba  Co.  v.  Adams  &  Co.,  7 
Cal.  35  ;    Adams  v.  Haskell,  6  Cal.  113.) 

Funds  in  the  hands  of  a  receiver,  in  a  suit  for 
dissolution  of  a  partnership,  are  subject  to  attachment 
at  any  time  before  a  final  decree  of  dissolution  and 
distribution.      (AdamxS  v.  Woods,  et  al.,  9  Cal.  24.) 

§  93.  Void  Levy. — A  levy  made  by  a  constable 
on  goods  which  he  does  not  see  or  have  in  his  pos- 
session is  void.  (Herron  z\  Hughes,  et  al.,  25  Cal. 
556.)       A  levy  brought  about  by  unlawfully  bringing 

7 


§  94      ATTACH  MF.XT  ON  I'l'.RSOXAL  PROPERTY.        98 

Di'Operty  from   one  jurisdiction  into  another  for  that 
purpose  is  held  to  be  utterly  void. 

§  94.  Void  Levy  upon  Insolvent's  Property. — 
A  writ  of  attachment  is  effectual  to  change  the  tide  of 
personal  property  only  from  the  time  of  the  levy.  A 
levy  may  be  good  as  against  the  defendant  in  the  writ, 
and  not  good  as  to  third  persons.  The  conduct  of  the 
defendant  may  make  the  levy  good,  by  way  of  waiver, 
or  estoppel,  or  agreement.  As  to  third  persons,  there 
can  be  no  levy  when  the  officer  does  not  know  the 
•  subject  of  the  levy — as  where  he  stands  at  the  door  of 
a  store,  which  is  locked,  and  keeps  others  out.  The 
levy  dates  from  the  time  he  gets  into  the  store  and 
takes  possession.      (Tafts  r-.  Manlove,  14  Cal.  47.) 

After  a  petition  and  schedule  in  insolvency  are  filed, 
the  control  and  dominion  of  the  insolvent's  property 
are  transferred  to  the  court.  And  a  creditor  cannot, 
after  such  filing — certainly  not  after  the  order  staying- 
proceedings — seize  the  propert}^  The  order  operates 
by  its  own  force  from  its  date,  and  no  notice  need  be 
given  of  it  to  a  sheriff  with  a  writ  against  the  insolvent. 
For  example :  An  attachment  issues  against  H.,  and 
the  sheriff  proceeds  with  the  writ  to  his  store,  which  is 
locked  and  fastened,  front  and  rear,  by  iron  shutters. 
The  sheriff,  with  his  deputy,  stands  at  the  door,  guard- 
ing all  entrance.  H.  now  files  his  petition  and  schedule 
in  insolvency,  and  the  usual  order  of  stay  of  proceed- 
ino-s  is  made.  H.  returns  to  the  store  and  advises  the 
sheriff  of  these  things.  The  sheriff  threatens  to  break 
open  the  store,  when  H.  gives  him  the  key,  and  he 
enters  and  levies.  In  this  case  (Tafts,  assignee  of 
Hill,  insolvent,  v.  Manlove,  14  Cal.  48)  it  was  held 
that  the  sheriff  had  no  right  to  levy,  and  that  the 
property  vested  in  the  assignee  of  the  insolvent,  sub- 


99  ATTACHMENT  ON  PERSONAL  PROPERTY.  §  94 

sequently  appointed,  by  relation,  from  the  filing  of  the 
petition  and  schedule.  (Tafts  z>.  Manlove,  14  Cal.  47.) 
As  the  writ  of  attachment  is  only  effectual  to  change 
the  title  of  goods  from  the  levy  of  the  process,  the 
question  arises,  what  constitutes  a  levy,  valid  and 
sufficient  in  law  to  vest  the  property  ?  In  the  decision 
above  referred  to,  the  court  says :  "It  may  be  admitted, 
as  unquestionably  the  law  is,  that  a  levy  may  be  good 
as  aeainst  the  defendant  in  the  writ,  when  it  would  not 
be  good  as  to  third  persons.  But  we  apprehend  that 
this  distinction  is  not  based  upon  any  difference  in  the 
legal  requisites  of  a  levy,  but  in  the  fact  that  the 
conduct  of  the  defendant,  either  by  positive  or  neg- 
ative acts,  may  amount  to  a  waiver,  or  an  estoppel,  or 
agreement  that  that  shall  be  a  levy  which,  without 
such  conduct,  would  not  be  sufficient.  However  this 
may  be,  we  can  conceive  of  no  principle  of  law,  and 
have  been  referred  to  no  case,  which  holds  that  the 
acts  relied  on  by  appellant  constitute  a  levy.  Waiving 
everything  else,  the  essential  element  of  an  intention 
to  levy  prior  to  the  entry  seems  to  be  wholly  wanting, 
from  anything  we  can  see  in  the  agreed  statement. 
That  the  sheriff  came  to  the  house  in  order  to  make 
the  levy  is  very  certain  ;  but  that  he  intended  to  make, 
or  considered  he  had  made,  a  levy  on  goods  in  the 
house,  by  standing  at  one  door  and  putting  his  com- 
panion at  the  other,  does  not  appear.  He  made  then 
no  note  or  memorandum  of  the  levy — did  not,  perhaps, 
even  know  what  g-oods  were  in  the  store,  their  des- 
cription  or  value  ;  and  besides  this,  demanded  the  key 
afterward  and  entered,  and  theii  seized  the  goods,  took 
the  inventory,  and  indorsed  the  levy.  There  is  neither 
proof  nor  probability  that,  before  this  time,  he  con- 
sidered he  had  seized  the  oroods,  or  if  he  did,  we  think 
he  was  clearly  mistaken. 


§  94  ATTACHMENT  ON   PERSONAL  PROPERTY.  lOO 

"In  Crocker  on  Sheriffs,  section  425,  p.  172,  it  is 
said:  'A  levy  upon  personal  property  is  the  act  of 
taking  possession  of,  seizing  or  attaching  it  by  the 
sheriff  or  other  officer,'  etc.  It  is  true,  the  author,  in 
section  427,  says:  'As  against  the  defendant  in  exe- 
cution, no  great  strictness  of  form  will  be  necessary 
in  making  a  levy  upon  personal  property.  Thus  the 
mere  entering  by  the  sheriff  of  the  property  of  the 
defendant,  with  his  assent,  upon  the  execution,  will  be 
conclusive  upon  such  defendant,  though  the  property 
is  not  present,  and  the  officer  does  not  know  where  it 
is.'  But  this  authority  and  the  cases  cited  by  appel- 
lant's counsel,  are  far  from  proving  the  proposition 
they  labor  to  sustain.  It  is  not  necessary  to  review 
these  cases,  for  all  of  them  turn  upon  a  wholly  different 
principle  from  that  invoked.  The  principle,  namely, 
that  the  assent  of  the  defendant  is  sufficient  as  against 
him,  even  where  the  goods  are  not  within  view,  or 
subject  to  the  dominion  of  the  officer. 

"  But  it  cannot  be  necessary  to  pursue  this  inquiry. 
It  is  too  plain  for  argument,  that  there  can  be  no  levy 
when  the  officer  does  not  even  know  the  subject  of  the 
levy.  As  well  might  a  sheriff  stand  in  the  street  and 
levy  upon  the  contents  of  a  banking-house,  as  to  stand 
in  a  store  door  at  midnight,  and  claim  that  merely  by 
standing  there  and  preventing  any  person  from  coming 
into  the  store,  he  had  levied  on  the  contents,  whatever 
they  were,  of  the  store  ;  and  this  without  having  any 
knowledee  of  the  nature  of  the  stock,  much  less  of 
the  particular  description  or  value.  But,  as  we  said 
before,  nothing  appears  to  show  that  the  mere  watch- 
\\-\vr  and  cruardinof  of  the  storehouse  was  meant  to  be  a 
levy  on  the  property  inside ;  but  these  were  acts 
merely  in  prosecution  of  the  design  to  enter  the  house 


lOI       ATTACHMENT  ON  PERSONAL  PROPERTY.      §  94 

and  levy  on  the  property  there,  which  purpose  was 
afterward  accomphshed. 

"  But  at  this  latter  time  the   restraining  order  was 
made  by  the  judge  ;  and  this  brings  up  the  other  and 
more  difficult  question — the  effect  of  this  order  upon 
the  plaintiff's  right  to  levy.      If,  before  the  petition  of 
insolvency  had  been  filed,  the  lien  of  this  plaintiff  had 
attached,  the  insolvent  proceedings  would  not,  i;nder 
the  statute,  have  divested  it.       But  we  have  seen  that 
no  lien  had  attached  until  after  the  filing  of  the  petidon 
and  the  granting  of  the  restraining  order.      By  section 
5   of  the  Insolvent  Act  (Wood's   Dig.  496)   it  is  pro- 
vided   that    the  judge    receiving  the    petition   of  the 
insolvent  shall  make  an  order  requiring  the  creditors 
of  the  insolvent  to  appear,  and  show  cause  why  the 
assignment  of   the   insolvent's   estate   should    not  be 
made  and  he  discharged,  etc. ;    and  by  the  8th  section 
'the  judge  shall  direct  the  clerk  to  issue  the  notice 
calling  the  creditors  together,'  etc.        By  section  9th, 
'  when  issuing  the  order  for  the  meedng  of  the  cred- 
itors, the  judge  s/ia//  order  that  all  proceedings  against 
the  debtor  be  stayed!      It  Is  observable  that  this  statute 
contemplates  the  double  purpose  of  discharging  the 
debtor  and  of  distribudng  his  assets  among  his  cred- 
itors.      He  is  allowed,  too,  by  the  statute,  a  provision 
out  of  the  property.      The  court  having  jurisdiction  of 
this  subject,  has  control  over  the  estate  as  a  portion  of 
the  subject  of  its  litigation.       The  whole  property  of 
the  bankrupt  may  be  considered  as  in  its  custody  and 
within  its  control.      The  proceedings,   at  least  in  its 
preliminary  stages,  is  more  in  the  nature  of  a  proceed- 
ing in  rem  than  in  personam.       No  notice  of  the  order 
staying  proceedings  was  necessary  to  the  sheriff  or 
the  creditor  to  p:ive  it  effect.       The  creditor  had  no 
right  to  levy  after  the  granting  of  the  order." 


§  95  ATTACHMENT  ON  PERSONAL  I'ROl'ERTV.  I02 

§  95.  How  Insolvency  Proceedings  Affect 
Attachment.  —  The  present  insolvency  law  would 
render  a  slight  modification  in  the  foregoing  opinion 
proper,  in  that  the  judge  is  not  required  to  make  any 
order  staying  proceedings  against  the  debtor.  The 
present  law  itself  stays  proceedings.  No  attachment 
can  be  levied  after  the  filing  of  the  petition  and  schedule 
in  voluntar)-  insolvency,  and,  whatever  property  there 
may  have  been  attached,  passes  from  the  hands  of 
the  officer  to  the  person  designated  by  the  court  as  its 
custodian,  or  to  the  assignee.  The  officer  should  not 
abandon  any  property  he  may  have  attached  belonging 
to  the  insolvent,  for  he  would  be  liable  for  its  loss 
thereby  ;  but  must  keep  it  until  the  lawfully  designated 
custodian  appears  to  receive  it. 

The  quesdon  as  to  whether  the  filing  of  a  petidon 
and  schedule  in  voluntary  insolvency  by  the  judgment 
debtor  stays  proceedings  under  execution  after  a  levy 
has  been  made,  has  not  been  up  to  this  writing,  deter- 
mined in  any  case  before  the  Supreme  Court  of  this 
State.  The  lien  of  a  levy  under  a  writ  of  attachment 
would  not  be  divested  by  insolvency  proceedings,  but 
proceedings  therein  would  be  stayed ;  nor  can  a  sheriff 
make  a  levy  under  the  writ  of  attachment  after  the 
debtor  has  filed  his  petition. 

A  creditor  may  prosecute  his  suit  to  a  judgment 
for  the  purpose  of  ascertaining  the  amount  due  to  him, 
but  all  other  proceedings  are  stayed,  in  actions  against 
the  debtor.  The  case  ofTafts  v.  Manlove,  14  Cal.  47, 
setdes  the  point  (if  any  doubt  existed)  as  to  the  stay 
of  proceedings  where  a  levy  has  been  made  under  a 
writ  of  attachment,  and  it  is  sometimes  urged  that  it 
determines  the  effect  of  involuntary  proceedings  also 
after  a  levy  has  been  made  under  the  writ  of  execution. 


I03  ATTACHMENT  ON  PERSONAL  PROPERTY.  §  96 

But  on  this  subject  opinions  are  divided.  The  In- 
solvency act  of  1880  follows  closely  in  form  the  United 
States  Bankruptcy  Law,  under  which  a  sheriff,  having 
made  a  levy  under  execution,  could  proceed  to  adver- 
tise and  sell  the  property  of  the  debtor,  where  the  levy 
had  been  made  prior  to  the  filing  of  the  petition  in 
insolvency,  and  it  is  the  opinion  of  many  members  of 
the  bar  that  our  courts  will  so  hold  whenever  the  ques- 
tion shall  come  up  for  consideration.  It  is  urged  by 
those  who  hold  this  view  of  the  question  that  where  a 
levy  under  execution  has  been  made  upon  a  judgment 
rendered  against  the  debtor,  no  rights  of  the  other 
creditors  of  the  insolvent  can  be  injuriously  affected 
by  the  application  of  the  property  levied  upon  to  the 
satisfaction  of  the  execution  creditor's  judgment. 

Under  the  Insolvency  law  his  judgment  would  be  a 
preferred  claim,  and  it  would  make  no  difference  to 
the  other  creditors  whether  the  judgment  were  satisfied 
by  the  sheriff  or  the  assignee.  There  is  also  to  be 
considered  the  riorhts  of  the  sheriff  in  the  matter.  He 
is  entitled  to  his  commissions  under  the  execution,  and 
the  rio-ht  vested  from  the  moment  he  made  the  levy. 

The  judgment  creditor,  having  pursued  the  property 
up  to  a  judgment,  execution,  and  levy,  should  be 
allowed  to  realize  under  the  levy  and  sale,  instead  of 
being  compelled  to  await  the  slow  proceedings  in- 
separable from  the  forms  and  ceremonies  of  insolvency. 

§  96.  What  Constitutes  a  Valid  Levy. — In 
making  the  seizure,  the  officer  should  exhibit  as  much 
regard  for  the  position  of  the  defendant  as  he  can 
consistendy  with  the  duty  he  owes  to  the  law.  the 
creditor's  rights,  and  to  himself.  He  should  under  no 
circumstance   conduct  himself  tyrannically  toward  the 


§  97  ATTACHMENT  ON  PERSONAL  PROPERTY.  IO4 

debtor,  nor  proclaim  the  debtor's  misfortune  from  the 
house-top.  Yet,  to  constitute  a  valid  levy,  the  courts 
have  held  that  some  open,  unequivocal  act  should  be 
done  that  would  lead  all  persons  to  know  that  the 
property  was  no  longer  in  the  custody  of  its  former 
owner,  but  in  that  of  the  law.  The  levy  of  the  attach- 
ment should  be  announced  to  whoever  may  be  present 
in  charge  of  the  property,  and  if  it  is  necessai-y  for  the 
safe  keeping  of  the  property  a  keeper  should  be  put 
in  charge  thereof.  An  inventor}'  of  the  articles  seized 
should  be  made  at  the  same  time. 

§  97.  Property  must  be  taken  into  Custody. 
Under  section  542,  Code  of  Civil  Procedure,  a  levy  of 
attachment  on  personal  property  capable  of  manual 
delivery  must  be  made  by  taking  the  property  into 
custody.  An  officer  cannot  safely  leave  property 
attached  in  the  possession  of  the  defendant.  The 
principle  is  asserted  in  Dutertre  r.  Driard,  7  Cal.  549, 
and  Sanford  r-.  Boring,  12  id.  539,  that,  if  after  a  levy 
of  a  writ  of  attachment  upon  personal  property,  by 
taking  it  into  possession,  the  officer  permit  the  defend- 
ant in  attachment  to  resume  its  possession,  the  levy 
would  be  thereby  defeated  as  against  execution  or 
attachment,  creditors  subsequendy  levying  thereon,  or 
against  a  subsequent  purchaser  from  the  defendant  in 
attachment,  who,  upon  such  purchase,  takes  the  pos- 
session thereof.  In  the  case  of  Dutertre  v.  Driard, 
above  referred  to,  the  plaintiff  recovered  a  judgment 
against  the  defendants  on  the  ist  of  May,  1856,  and 
caused  an  execution  to  be  placed  in  the  hands  of  the 
sheriff,  who  on  that  day  had  sufficient  property  in  his 
hands,  consisting  of  the  stock  and  furniture  of  the 
Franklin  restaurant,  by  virtue  of  a  writ  of  attachment 


I05  ATTACHMENT  ON  PERSONAL  PROPERTY.  §  98 

in  the  suit,  to  satisfy  the  judgment.  The  same  clay 
the  plaintiff  stipulated  with  defendants  that  if  they 
would  pay  him  two  hundred  and  seventy-eight  dollars 
and  eighty-two  cents  on  the  5th  of  May,  the  execution 
should  be  suspended  for  one  month  ;  and  then,  if 
^175  should  be  paid,  a  suspension  for  another  month 
should  be  given  ;  and  so  on,  from  month  to  month, 
until  all  should  be  paid  ;  but  if  defendants  failed  to 
make  their  payments,  the  sheriff  should  proceed  to 
sell.  The  property  in  the  meantime  to  be  considered 
in  charge  of  a  mutual  friend,  as  sheriff's  keeper,  and 
that  officer  released  from  the  safe-keeping,  and  written 
orders  were  given  the  sheriff  in  conformity  with  the 
above.  On  the  2d  of  July,  1856,  the  sheriff  returned 
the  execution,  its  time  having  expired,  and  on  the 
28th  of  August,  an  "alias"  issued.  The  monthly 
payments  were  punctually  paid  by  the  defendants  up 
to  the  5th  of  August,  1856,  which  stayed  the  execution 
until  the  5th  of  September.  On  the  2 2d  day  of 
August,  1856,  the  same  effects  were  attached  by 
Baker  &  Corbinier,  for  about  5^600  ;  on  the  26th  of 
August  the  goods  were  sold  for  about  ;^i400.  The 
sheriff  refusing  to  pay  over  the  money  arising  from 
the  sale,  until  the  rights  of  plaintiff,  and  Baker  & 
Corbinier,  were  determined,  a  rule  was  procured  by 
plaintiff  against  him  to  show  cause  why  he  should  not 
satisfy  his  execution  against  defendants.  At  the  hear- 
ing thereof,  the  court  below  decided  that  the  plaintiff 
had  lost  his  priority,  and  the  claim  of  Baker  &  Cor- 
binier must  first  be  paid  out  of  the  funds  arising  from 
the  sale.  From  this  order  plaintiff  appealed,  and  the 
supreme  court  affirmed  the  judgment. 

§  98.      Attached    Property    in    Custody. —  If   a 


§  99  ATTACHMENT  OX  PERSONAL  PROPERTY.  Io6 

sheriff  attaches  personal  property  consisting  of  a  port- 
able steam  threshing  engine  and  accompanying  articles 
used  for  threshing,  by  making  a  memorandum  of  the 
propert)'  and  delivering  a  copy  of  the  attachment, 
summons  and  complaint  to  the  defendant,  and  then 
directing  verbally  a  person  who  is  at  work  one  hun- 
dred yards  froni  the  place  where  the  property  lies  to 
look  after  It,  and  If  anyone  meddles  with  it  to  tell  them 
it  is  attached,  he  has  sufficient  custody  of  the  property 
as  against  persons  purchasing  it  from  the  defendant 
with  knowledge  of  the  attachment.  (Rogers  v.  Gilmore, 
51  Cal.  310.)  The  court  said:  "The  statute  requires 
that  the  officer  should  take  the  property  into  custody. 
And  It  seems  by  the  authorities  that  what  that  means 
Is  governed  somewhat  by  the  situation  or  relation  of 
the  parties  making  the  contest.  It  is  supposed  that  as 
against  Gilmore  himself  there  was  sufficient  custody 
of  this  propert}^  to  hold  It.  Against  another  attaching 
creditor  there  may  not  have  been.  Against  a  pur- 
chaser from  Gilmore,  771  good  faii/i,  there  may  not 
have  been.  But  the  court  is  of  the  opinion  that  the 
defendants  purchasing  from  him.  etvV/z  notice  of  the 
attacJunent,  It  is  a  sufficient  custody  as  against  them." 

§  99.  Property  must  be  Within  View  of  the 
Officer. — The  levy  to  be  valid  must  be  made  by  taking 
the  goods  into  his  custody  and  under  his  exclusive 
control.  The  articles  must  be  within  the  power  of 
the  officer.  He  must  continue  to  retain  this  power 
over  them  by  remaining  present  himself,  by  appoindng 
an  agent  or  keeper  in  his  absence,  by  taking  a  receipt 
for  the  property,  by  Inventorying  them,  or  by  a  seas- 
onable removal  of  them.  It  Is  not  necessary  that  they 
should  be  removed,  but  they  must.  In  all  cases,  be  put 


I07        ATTACHMENT  ON  PERSONAL  PROPERTY.       §§IOO,IOI 

out  of  the  control  of  the  debtor.  When  the  attach- 
ment is  levied,  the  property  must  be  within  the  view 
and  subject  to  the  control  of  the  officer. 

§  I  GO.  Attachment  Lien  Dependent  on  Pos- 
session.— An  officer  who  levies  an  attachment  or  ex- 
ecution upon  personal  property  acquires  a  special  lien, 
dependent  on  possession,  upon  such  property,  which 
authorizes  him  to  hold  it  until  the  process  is  discharged 
or  satisfied,  or  a  judicial  sale  of  the  property  is  had. 
(§  3057.  Civil   Code.) 

§  loi.  Prior  Liens  must  be  Satisfied. — An 
officer  cannot  take  property  belonging  to  the  defend- 
ant in  the  writ,  from  the  possession  of  a  third  party 
who  has  a  lien  upon  the  property,  without  first  satis- 
fying the  claims  of  the  lien.  "Every^  person  who,  while 
lawfully  in  possession  of  an  article  of  personal  property, 
renders  any  service  to  the  owner  thereof  by  labor  or 
skill  employed  for  the  protection,  improvement,  safe 
keeping,  or  carriage  thereof,  has  a  special  lien  thereon, 
dependent  on  possession,  for  the  compensation,  if  any, 
which  is  due  to  him  from  the  owner  for  such  service. 

Any  liver}'  or  boarding  or  feed  stable  proprietors 
and  persons  pasturing  horses  or  stock  have  a  lien 
dependent  on  possession  for  their  compensation  in 
caring  for,  boarding,  feeding,  or  pasturing  such  horses 
or  stock.  A  person  who  makes,  alters,  or  repairs  any 
article  of  personal  property,  at  the  request  of  the 
owner,  or  legal  possessor  of  the  property,  has  a  lien 
on  the  same  for  his  reasonable  charges  for  work  done 
and  materials  furnished,  and  may  retain  possession  of 
the  same  until  the  charges  are  paid."  (§  3051,  3052, 
Civil  Code.) 


§§  I02,    I03        ATTACHMENT  ON  PERSONAL  PROPERTY.        Io8 

§  I02.  ^A/'aiver  of  Warehouseman's  Lien. — 
When  a  warehouseman  who  has  goods  in  charge 
states  to  one  who  is  about  to  take  possession  of  the 
same,  by  a  legal  process,  that  he  has  no  charges  on 
the  eoods,  this  is  a  waiver  of  the  warehouseman's  lien 
for  charges,  if  any  he  had.  (Blackman  v.  Pierce  23 
Cal.  509.) 

§  103.  Sales  Prohibited  under  Attachment. — 
An  officer  cannot  sell  property  nor  allow  it  to  be  sold 
under  attachment,  except  it  be  perishable  property 
(§  547,  C.  C.  P.),  or  by  an  order  of  the  court  as  pro- 
vided in  §  548,  C.  C.  P.  An  officer  selling  without  the 
notice  prescribed  by  §  692.  C.  C.  P.  forfeits  5^500  to 
the  aggrieved  party,  in  addition  to  his  actual  damages. 
The  law  jDrohibiting  sales,  except  as  above  noted,  is 
sometimes  more  honored  in  the  breach  than  in  the 
observance.  The  fact  that  a  stock  of  goods  in  a  store 
is  attached  is  not  always  positive  evidence  that  the 
defendant  is  insolvent  and  unable  to  pay  the  claim. 
Where  the  officer  knows  the  debtor  to  be  solvent,  he 
may  be  morally,  although  not  legally,  justified  in 
permitting  the  debtor's  business  to  go  on  for  a  brief 
time,  to  enable  him  to  setde  with  the  attaching  cred- 
itor, the  officer  in  the  meantime  placing  a  keeper  in 
charge  of  the  eoods,  with  the  understandinq-  that  all 
moneys  received  by  sales  shall  be  turned  over  to  the 
officer. 

The  application  of  an  attaching  creditor,  to  compel 
the  sheriff  to  pay  over  the  proceeds  of  goods  attached, 
there  being  conflicdng  claims  between  several  attach- 
ing creditors,  may  be  made  by  motion.  If  notice  of 
the  motion  is  not  given,  by  the  party  moving,  to  the 
other  attaching  creditors,  it  is  the  duty  of  the  sheriff  to 


I09      ATTACHMENT  ON  PERSONAL  PROPERTY.     §  IO3 

do  SO,  if  he  wishes  the  decision  to  bind  them.      (Dixey 
v.  Pollock,  8  Cal.  570.) 

A  sheriff  who  receives  an  attachment,  regular  upon 
its  face,  cannot  pay  over  the  money  obtained  by  him 
from  the  sale  of  the  property,  levied  on  by  virtue  of 
the  writ,  to  a  junior  attaching  creditor,  because  the 
complaint  in  the  action  on  which  the  first  attachment 
was  issued  did  not  set  forth  a  cause  of  action  upon 
which  an  attachment  could  issue.  When  a  sheriff 
receives  money  on  execution  sale  of  property  levied 
on  by  virtue  of  attachments,  it  is  his  duty  to  apply  the 
money  in  the  order  of  the  attachments.  The  sheriff 
has  no  right  to  go  back  of  the  process  and  raise  the 
question  as  to  the  validity  of  the  attachments.  (Mc- 
Comb  V.  Reed,  28  Cal.  281.) 

If  two  attachments,  issued  from  different  district 
courts,  are  placed  in  the  sheriff's  hands,  and  one  is 
issued  and  levied  before  the  other,  and  the  sheriff 
levies  on  personal  property  by  virtue  of  both,  although 
the  court  from  which  the  second  attachment  issued 
may  make  an  order  for  the  sale  of  the  property,  It  has 
no  power  to  dispose  of  the  fund  arising  from  the  sale, 
other  than  the  surplus  remaining  after  the  claim  of  the 
first  attaching  creditor  Is  satisfied.  (Weaver  zk  Wood, 
49  Cal.  297.) 

If  two  attachments,  issued  out  of  different  courts,  at 
different  times,  are  placed  In  a  sheriff's  hands,  and 
both  are  levied  on  the  same  personal  property,  and 
the  court  out  of  which  the  latest  attachment  issues 
orders  the  property  sold,  and  the  proceeds  deposited 
with  its  clerk,  and  the  sheriff  obeys,  and  the  money  is 
paid  to  the  second  attaching  creditor,  the  sheriff  is 
liable  to  the  first  attaching  creditor  for  the  amount  for 
which  he  recovers  judgment,  or  for  the  amount  of  the 
proceeds,  if  less  than  the  amount  of  the  judgment.    Id. 


§§   104-106       ATTACHMENT  ox  PERSONAL  PROPERTY.         IIO 

§  104.  Keeper's  Fees. — .In  keeping  property 
under  process,  the  same  prudence  and  economy  should 
be  exercised  as  in  the  ordinary  business  affairs  of  life. 
No  unnecessary  expense  should  be  incurred  therein. 
Where  the  fee  bill  of  the  count)'  provides  that  the  costs 
of  the  officer  shall  be  allowed  by  the  court,  a  statement 
of  the  costs  should  be  submitted  to  the  court  for  ap- 
proval before  the  return  is  made  upon  the  writ. 

§  105.  Removal  of  Attached  Property. — When 
goods  are  attached  in  a  store,  dwelling,  hotel,  or  other 
establishment,  and  the  defendant  shows  no  inclination 
to  procure  a  release  of  the  attachment,  or,  on  the  con- 
trar>\  desires  the  property  removed,  and  that  no 
keeper  be  left  upon  his  premises,  the  wishes  of  the 
owner  should  be  complied  with  as  soon  as  practicable. 
How  soon,  must  depend  upon  the  circumstances  of 
the  case.  For  while  it  is  not  only  the  right  but  the 
duty  of  the  officer  to  seize  the  creditor's  property,  yet 
the  creditor's  house  is  his  casde,  and  the  officer  by 
remaining  therein,  or  by  leaving  his  keeper  therein, 
an  unreasonable  length  of  time,  becomes  a  trespasser 
and  may  be  ejected  therefrom.  He  is  not  bound  to 
remove  the  goods  in  the  night  time,  when  the  levy  has 
been  made  at  too  late  an  hour  of  that  day  to  enable 
him  to  take  them  away  with  safety. 

§  106.  Retaking  Goods  from  Officer. — Every 
person  who  wilfully  injures  or  destroys,  or  takes  or 
attempts  to  take,  or  assists  any  person  in  taking  or 
attempting  to  take,  from  the  custody  of  any  officer  or 
person,  any  personal  property  which  such  officer  or 
person  has  in  charge  under  any  process  of  law,  is 
(according  to  §  102  of  the  Penal  Code)  guilty  of  a 
misdemeanor. 


I  I  I        ATTACHMENT  ON  PERSONAL  PROPERTY,       §§   lOj-lOg 

§  107.  Penalty  for  Obstructing  Officer. — Ever)- 
person  who  wilfully  resists,  delays  or  obstructs  any 
public  officer  in  the  discharge  or  attempt  to  discharge 
any  duty  of  his  office,  when  no  other  punishment  is 
prescribed,  is  punishable  by  fine  not  exceeding  $5000, 
and  imprisonment  in  the  county  jail  not  exceeding  five 
years.      (§  148,  Penal  Code.) 

§  108.  Excessive  Levy. —  If  there  is  sufficient 
property  in  the  defendant's  possession  to  satisfy  the 
claim  of  the  attaching  creditor,  with  costs,  he  will  be 
liable  to  the  latter  if  he  does  not  levy  upon  sufficient 
goods  to  satisfy  the  judgment.  If,  on  the  other  hand, 
he  make  an  excessive  levy,  he  is  liable  to  the  defendant 
in  the  action.  Where  there  is  great  uncertainty  at  the 
time  of  the  levy  as  to  the  value  of  the  property'  attach- 
ed, and  it  is  subsequently  ascertained  that  its  value  is 
greatly  in  excess  of  the  demand  sued  for,  it  does  not 
follow  that  the  levy  was  therefore  excessive.  It  is  the 
duty  of  the  officer  to  seize  sufficient  property  to  satisfy 
the  amount  specified  in  the  writ — that  is  to  say,  pro- 
perty which  would  be  sufficient,  in  his  judgment,  when 
sold  at  public  auction.  There  are  times  when  from 
the  situation  of  the  property,  and  other  circumstances, 
there  must  be  great  uncertainty  as  to  its  value,  and 
because  it  may  turn  out  afterwards  that  the  value  of 
the  property  is  much  greater  than  the  demand,  it  does 
not  follow  that  the  levy  was  therefore  excessive. 
(Sexey  v.  Adkison,  40  Cal.  408.) 

§  109.  Surplus  Property  to  Return  to  De- 
fendant,— When  the  lien  of  an  attachment  is  satisfied, 
the  property  not  disposed  of  in  satisfaction  of  the  lien, 
as  well  as  the  surplus  moneys  that  may  remain  after 


^  I  lO     ATTACHMENT  ON  PERSONAL  PROPERTY.       112 

the  sheriff's  sale  and  satisfaction  of  the  debt,  remain 
subject  to  the  rights  of  the  judgment  debtor  or  his 
assignee.      (Sexey  v.  Adkison,  40  Cah  408.) 

§110.  Sheriff  Liable  for  Loss  by  Negligence. 
A  sheriff  who  levies  a  writ  of  attachment  upon  per- 
sonal property,  in  obedience  to  the  commands  of  the 
writ,  has  no  right  to  let  the  property  go  out  of  his 
hands,  except  in  due  course  of  law,  and  if  he  does, 
and  the  debt  is  lost,  he  is  responsible  to  the  plaintiff 
in  the  attachment  for  the  amount  of  the  debt.  One 
Sanford  sued  Boring,  the  sheriff  of  Nevada  county, 
{12  Cal.  539)  for  a  failure  to  make  a  levy  and  sale  of 
property — previously  attached  in  the  same  suit — under 
an  execution  issued  upon  a  judgment  in  favor  of 
plaintiff  and  against  Pultney  &  Armstrong.  When 
the  sheriff  took  the  property  under  the  writ  of  attach- 
ment, he  did  not  remove  it,  but  left  it  all  in  the  stable 
where  it  was  attached,  and  in  the  possession  of  Arm- 
strong, one  of  the  (then)  defendants,  who  continued 
in  possession,  and  conducted  the  business  as  he  had 
done  before.  The  sheriff  did  not  make  the  money. 
On  the  trial,  the  defendant  offered  to  prove  that 
plaintiff  verbally  directed  the  defendant  to  put  Arm- 
strong in  possession  of  the  property  attached  at  the 
suit  of  Sanford,  as  keeper.  This  evidence  was  ob- 
jected to,  upon  the  ground  that  the  statute  required 
such  instructions  to  be  in  writing.  The  sheriff  lost 
the  case.  He  had  levied  the  attachment  upon  suffi- 
cient property  to  satisfy  the  debt,  and  he  failed  to 
make  the  money  under  the  execution.  The  levy  of 
the  attachment  placed  the  property  in  his  hands  to 
abide  the  judgment  and  execution,  and  this  property 
was  the  plaintiff's  security  for  his  debt.      If  the  sheriff 


113  ATTACHMENT  ON  PERSONAL  PROPERTY.  §    I  I  I 

wasted  or  lost  it,  or  suffered  it  to  be  diverted  to  some 
other  purpose,  he  is  liable.  He  had  no  right  to  suffer 
the  property  to  go  out  of  his  possession,  except  in  due 
course  of  law,  and  became  responsible  when  he  did  so. 
His  excuse  that  he  was  verbally  directed  by  Sanford 
to  put  Armstrong  in  possession  as  keeper  could  not 
avail  him.  The  statute  is  express,  that  no  direction 
or  authority  by  a  party  or  his  attorney  to  a  sheriff  in 
respect  to  the  execution  of  process,  or  the  return 
thereof,  or  to  any  act  in  relation  thereto,  shall  be 
available  to  discharge  or  excuse  the  sheriff  for  a 
liability  for  neglect  or  misconduct  unless  it  be  con- 
tained in  writing.  The  evident  meaning  of  this 
language  embraces  all  acts  done  by  the  sheriff  in 
respect  to  the  execution  of  process,  including,  of 
course,  the  care  and  disposition  of  the  property  levied 
on, 

§111.  Authority  to  Conduct  Business  under 
Attachment. — An  attorney  has  no  authority,  by  virtue 
of  his  employment  as  such,  to  instruct  a  sheriff  to  con- 
duct a  business,  such  as  a  restaurant,  upon  which  an 
attachment  has  been  levied,  and  thereby  bind  his  client 
for  the  expenses  incurred.  This  is  laid  down  as  the 
law  in  this  state,  in  Alexander  v.  Denaveaux,  53  Cal. 
663,  and  is  in  accordance  with  §  283  of  the  Code  of 
Civil  Procedure,  which,  in  subdivision  i,  defines  the 
authority  of  an  attorney:  "To  bind  his  client  in  any 
of  the  steps  of  an  action  or  proceeding  by  his  agree- 
ment filed  with  the  clerk,  or  entered  upon  the  minutes 
of  the  court,  mid  not  otherwise^  There  are  decisions 
to  the  contrary  in  other  states,  but  they  are  probably 
based  upon  less  stringent  laws  relating  to  clientage. 

In  the  case  above  referred  to,  the  sheriff  attached  a 
restaurant,  kept  it  open  and  conducted  the  business 


§   I  I  I  ATTACHMENT  ON  TERSONAL  PROPERTY.  I  1 4 

for  awhile,  under  the  instructions  of  the  plaintiff's 
attorne)'.  The  sheriff  sued  the  plaintiff  for  the  ex- 
penses incurred,  and  the  Supreme  Court,  on  appeal, 
said:  "The  plaintiff  alleges  in  substance  that  he,  at  a 
certain  time,  was  sheriff  of  Los  Angeles  county  and 
that  while  he  was  such  sheriff  the  defendants  delivered 
to  him  an  attachment  which  they  had  sued  out  against 
the  proprietors  of  a  restaurant,  which  he  attached  and 
took  into  his  possession,  and  that  thereafter  the  de- 
fendants "duly  gave  plaintiff,  as  sheriff  as  aforesaid, 
instructions  in  writing  to  keep  the  said  restaurant  open 
while  holding  the  same  under  said  writ,  and  pursuant 
to  said  request  and  instructions  plaintiff  did  keep  the 
same  open,  and  at  the  request  of  said  Denaveaux  and 
Maison  (the  defendants)  plaintiff  did,  between  the  25th 
day  of  July  and  the  i6th  day  of  October,  1877,  render 
service  and  incur  expense  for  the  defendants  herein 
and  about  the  levy  of  said  writ  as  aforesaid,  the  pre- 
servation of  land,  property,  keepers'  fees  and  cost  of 
storage,  to  the  amount  and  of  the  value  of  $1,272.73." 

On  the  trial  it  was  not  shown  that  the  defendants 
ever  gave  the  plaintiff  any  instructions  in  writing  or 
otherwise  to  keep  said  restaurant  open  for  any  period. 

But  it  was  shown  against  the  objection  of  defendants 
that  defendants'  attorneys  did  so  instruct  the  plaintiff 
in  writing,  which  was  introduced  in  evidence  by  the 
plaintiff  "for  the  purpose  only  of  showing  that  Dena- 
veaux and  Maison  (the  defendants)  had  notice  that 
the  property  had  been  attached  and  that  the  sheriff 
had  it  in  his  custody  at  the  place  where  it  had  been 
attached,  and  not  for  the  purpose  of  showing  anything 
in  regard  to  running  of  restaurant,  and  attorneys  for 
plaintiff  expressly  disclaimed  any  intention  to  demand 
any  amount  or  charge    for  running   the  restaurant." 


115  ATTACHMENT  ON  PERSONAL  PROPERTY.  §111 

To  the  ruling-  of  the  court  upon  their  objection  to 
the  introduction  of  this  testimony  the  defendants  ex- 
cepted. There  are  cases  in  which  testimony  may  be 
introduced  for  one  purpose  which  is  inadmissible  for 
any  other,  and  the  court  in  such  cases  may  properly 
admit  it  for  that  purpose,  and  limit  it  at  the  request  of 
the  opposing  party  to  that  purpose  only.  But  this 
testimony  had  a  tendency  to  prove  one  of  the  allega- 
tions of  the  complaint  which  was  denied  by  the  answer, 
to  wit :  That  the  defendants  instructed  the  plaintiff  in 
writing  to  keep  the  restaurant  open,  and  it  was  wholly 
irrelevant  and  immaterial  for  any  other  purpose.  The 
Code  does  not  require  that  the  sheriff  shall  give  an 
attaching  creditor  notice  of  the  levy  of  his  attachment, 
and  it  was  wholly  unnecessary  in  this  action  to  prove 
that  the  defendants  had  notice  that  theirs  had  been 
levied  upon  said  restaurant.  If  the  levy  was  properly 
made  the  plaintiff  was  entitled  to  his  legal  fees,  and 
the  defendants  were  bound  to  pay  them. 

And  although  the  learned  judge  who  tried  the  case 
admitted  this  testimony  for  the  single  object  which  he 
at  the  time  stated,  it  appears  from  the  first  instruction 
which  he  gave  to  the  jury  that  he  subsequently  lost 
sight  of  that  object.  For  he  instructed  them  as  fol- 
lows: "If  you  find  from  the  evidence  that  the  plaintiff 
rendered  the  services  and  incurred  the  expenses  and 
indebtedness  sued  for,  for  Denaveaux  and  Maison  in 
their  suit  against  Caison  and  Schmidt,  and  at  the  re- 
quest of  the  attorneys  for  said  Denaveaux  and  Maison, 
then  you  must  find  for  the  plaintiff." 

Here  we  have  first  an  allegation  that  the  plaintiff 
while  holding-  said  restaurant  under  said  attachment 
kept  the  same  open  by  written  instructions  of  the  de- 
fendants;   second,  a   writing   introduced   in  evidence 


§    I  I  I  ATTACHMENT  ON  PERSONAL  PROPERTY.  I  I  6 

which  shows  that  the  defendant's  attorneys  instructed 
the  plaintiff  to  keep  it  open,  and,  third,  an  instruction 
to  the  effect  that  if  the  plaintiff  rendered  the  services 
and  incurred  the  indebtedness  sued  for,  at  the  request 
of  the  attorneys  of  the  defendants  the  verdict  must  be 
for  the  plaintiff. 

When  this  case  was  here  before,  the  court  said : 
"The  plaintiff"  here,  as  sheriff,  certainly  had  no 
authority  because  of  the  writ  of  attachment  in  his 
hands,  to  keep  the  restaurant  open  for  customers,  or 
to  conduct  business  therein.  His  authority,  if  any, 
came  from  the  instructions  of  the  attorneys  of  the 
plaintiffs  in  the  attachment  suit.  But  those  attorneys 
had  themselves  no  authority  to  give  such  instructions, 
or  to  thereby  bind  their  clients,  the  defendants  here,  to 
pay  for  expenses  incurred  by  the  sheriff  in  conducting 
the  business.  The  circumstances  under  which  an 
attorney  has  authority  to  bind  his  client  are  pointed 
out  In  the  Code  of  Civil  Procedure,  §  283,  and  the  facts 
of  this  case  do  not  bring  it  within  that  section.  (53 
Cal.  664.) 

"It  seems  to  us  that  this  makes  the  errors  of  the  court, 
in  admitting  the  written  directions  of  the  defendant's 
attorneys  in  evidence,  and  in  giving  the  instruction 
above  quoted,  manifest. 

"Judgment  and  order  denying  motion  for  a  new  trial 

reversed. 

Sharpstein,  J. 

I  concur: 

Myrick,  J. 


CONCURRING    OPINION. 

"  I  concur  in  the  above.     The  attorneys  for  plaintiff 
having  disclaimed  any  intention  to  demand  any  amount 


I  I  7       ATTACHMENT  ON  PERSONAL  PROPERTY.       §§  I  I  2-1  1 4 

or  charge  for  recovering  the  restaurant,  was  equivalent 
to  withdrawing  any  claim  for  it,  and  the  instructions  of 
the  court  contravening  this  disclaimer  were  erroneous. 

Thornton,  J." 

§  112.  Authority  of  Deputy. — A  deputy  sheriff 
who  seizes  property  under  an  attachment,  is  not 
authorized,  by  virtue  of  his  office,  to  bind  the  sheriff 
by  contract  for  the  payment  of  a  keeper  to  take  charge 
of  the  property  so  attached.  Special  authority  for  this 
purpose  must  be  shown.  (Krum  v.  King,  12  Cal. 
412.) 

§  113.  Partnership  Property. — A  sheriff,  under 
an  attachment,  must  take  possession  of  the  personal 
property  upon  which  he  levies;  Being  authorized  to 
seize  the  interest  of  one  of  several  part  owners -in  a 
chattel,  he  must  take  the  sole  possession  of  it,  in  order 
that  it  may  be  forthcoming  at  the  day  of  sale.  If  a 
sheriff  has  a  writ  of  attachment  against  one  member 
of  a  partnership,  he  must  attach  the  interest  of  that 
partner  in  the  partnership  effects,  and  in  order  to  do 
so  may  take  possession  of  the  entire  property.  (See 
also  §  202.) 

Where  shares  of  stock  in  a  corporation  have  been 
regularly  transferred  as  security  for  a  loan,  the  mort- 
gagee is  the  only  proper  garnishee  in  a  suit  against 
the  morteaofor,  and  attachment  on  his  interest  in  the 
corporation.  In  such  a  case  the  corporation  is  no 
longer  privy  to  the  interest  of  the  mortgagor,  which 
is  a  mere  equity  in  the  hands  of  the  mortgagee. 
(Edwards  v.  Beugnot,  7  Cal.  159.) 

§  114.     Attachment    of   Stocks. — The  rights  or 


§§  115,   1^6       ATTACHMENT  ON  PERSONAL  PRUPERTY.         I  I  8 

shares  which  the  defendant  may  have  in  the  stock  of 
any  corporation  or  company,  together  with  the  interest 
and  profit  thereon,  may  be  attached,  and  if  judgment 
be  recovered,  be  sold  to  satisfy  the  judgment  and 
execution.  So  with  all  debts  due  the  defendant,  and 
all  other  property  in  this  State  of  such  defendant,  not 
exempt  from  execution.     (See  §  541,  C.  C.  P.) 

§  115.  Stocks  Attached  by  Garnishment. — 
Stocks  or  shares,  or  interest  in  stocks  or  shares,  of 
any  corporation  or  company,  must  be  attached  by 
leaving  with  the  president  or  other  head  of  the  same, 
or  the  secretary^  cashier,  or  other  managing  agent 
thereof,  a  copy  of  the  writ,  and  a  notice  stating  that 
the  stock  or  interest  of  the  defendant  is  attached,  in 
pursuance  of  such  writ.      (§  542,  C.  C.  P.) 

Stock  issued  by  corporations  formed  under  our 
statute  is  only  personal  property,  and  no  transfer  of 
the  same  is  good  against  third  parties,  unless  the 
transfer  be  made  upon  the  books  of  the  company. 
(Weston  V.  B.  R.  &  A.  W.  &  M.  Co.,  5  Cal.  193.) 

§  116.  Property  not  Capable  of  Manual  De- 
livery.— Debts  and  credits,  and  other  personal  pro- 
perty not  capable  of  manual  delivery,  must  be  attached 
by  leaving  with  the  person  owing  such  debts,  or 
having  in  his  possession  or  under  his  control  such 
credits  and  other  personal  property,  or  with  his  agent, 
a  copy  of  the  writ  and  a  notice  that  the  debts  owing 
by  him  to  the  defendant,  or  the  credits  and  other 
personal  property  in  his  possession  or  under  his 
control,  belonging  to  the  defendant,  are  attached  in- 
pursuance  of  such  writ.  (§  542,  C.  C.  P.)  This 
method  of  attachment  is  what  is  generally  termed  the- 


I  19       ATTACHMENT  ON  PERSONAL  PROPERTY.       §§  I  I  7,   I  18 

garnishment.  When  served  upon  a  corporation,  the 
notice  should  be  directed  to  the  corporation  by  its  full 
name.  Upon  serving  the  same,  the  officer  must 
request  the  person  to  whom  it  is  delivered  to  make  a 
statement  in  response  to  the  garnishment.  It  is  a 
custom  with  officers  to  deliver  with  the  notice  of 
garnishment  a  printed  blank  for  an  answer,  or  state- 
ment. The  service  of  garnishment  should  be  promptly 
performed,  the  nature  of  the  kind  of  personal  pro- 
perty thus  attachable  being  easily  and  quickly  trans- 
ferable. 

§  117.  Attachable  Interest  of  Lessee  in 
Leased  Property. — A  contract  by  which  A.  lets  B. 
have  a  flock  of  sheep  which  he  owns,  and  of  which  he 
is  to  retain  the  ownership,  to  keep  for  three  years,  and 
by  which  B.  is  to  deliver  to  A.  the  wool  sheared  from 
the  sheep,  and  A.  is  to  sell  it  and  pay  B.  one-half  the 
proceeds,  and  by  which  B.  is  to  deliver  to  A.,  at  the 
end  of  the  term,  the  sheep,  and  A.  is  then  to  divide 
with  B.  the  increase,  giving  B.  one-half  the  increase  as 
compensation  for  his  services,  does  not  give  B.  such 
an  interest  in  the  sheep  or  increase  as  will  support  a 
seizure  of  them  under  an  attachment  against  the 
property  of  B.  The  interest  of  B.  in  the  sheep  must 
be  reached  by  his  creditors  under  a  different  proceed- 
ing. (Tuohy  V.  Wingfield,  51  Cal.  319.)  The  proper 
procedure  would  have  been  by  garnishment  on  the 
owner  of  the  sheep. 

§  1 18.  Mode  of  Attaching  Goods  in  the  Hands 
of  Third  Parties. — Under  the  provisions  of  §§  542, 
544,  545  and  688,  Code  Civil  Procedure,  it  is  pro- 
vided, that  whilst  the  interest  of  a  pledgor  of  property 


§    I  19  ATTACHMENT  ON  PERSONAL  PROPERTY.  I20 

is  subject  to  execution,  and  may  be  reached  in  the 
hands  of  the  pledgee  when  a  third  party,  yet  this  can 
only  be  done  by  serving  and  enforcing  a  garnishment 
on  the  pledgee,  and  not  by  a  seizure  of  the  pledge. 
(Treadwell  v.  Davis,  34  Cal.  601.) 

§  119.  Pledge  of  Goods — Rights  of  Pledge. — 
In  the  case  of  Treadwell  v.  Davis,  sheriff,  34  Cal.  601, 
plaintiff  and  one  Templeton  were  severally  creditors 
of  Thompson,  Templeton,  as  security  for  his  debt, 
held  in  pledge  Thompson's  goods,  of  greater  value 
than  the  sum  of  both  plaintiff's  and  Templeton's 
debts.  By  an  arrangement  between  them,  plaintiff 
guaranteed  to  Templeton  the  payment  of  his  debt, 
and  received  from  him  an  assignment  and  the  posses- 
sion of  said  goods,  in  pledge  to  secure  the  payment  of 
the  debts  of  both  plaintiff  and  Templeton.  Thompson, 
who  was  not  a  party  to  this  arrangement  between 
plaintiff  and  Templeton,  afterwards  expressed  himself 
gratified  at  its  consummation.  Thereafter  defendant, 
as  sheriff  of  the  city  and  county  of  San  Francisco, 
levied  upon  and  took  said  goods  from  plaintiff's  pos- 
session, under  a  lawful  writ  of  attachment  against  the 
property  of  Thompson,  issued  out  in  the  suit  of 
Martin  v.  Thompson,  whereupon  plaintiff  brought 
this  action  against  defendant  for  said  seizure,  and  to 
recover  the  full  value  of  said  goods.  Held,  first,  that 
Templeton  lost  his  lien  on  the  goods,  as  pledgee,  by 
surrendering  them^  to  plaintiff  and  taking  said  guar- 
anty for  his  debt ;  second,  that  by  said  arrangement 
between  Templeton  and  plaintiff,  and  the  subsequent 
assent  thereto  by  Thompson,  plaintiff  acquired,  as 
pledgee,  a  valid  lien  on  said  goods  to  secure  the 
payment  of  both  said  debts  ;    and  third,  that  plaintiff 


121        ATTACHMENT  ON  PERSONAL  PROPERTY.       §§I20,   121 

is  entitled  to  recover  in  this  action,  and  his  right  of 
recovery  is  not  Hmited  to  his  interest  only,  as  pledgee 
of  the  eoods,  but  extends  to  the  whole  value  of  the 
goods. 

§  1 20.  The  Garnishnient. — Upon  receiving  in- 
formation in  writing  from  the  plaintiff  or  his  attorney, 
that  any  person  has  in  his  possession,  or  under  his 
control,  any  credits  or  other  personal  property  be- 
longing to  the  defendant,  or  is  owing  any  debt  to  the 
defendant,  the  sheriff  must  serve  upon  such  person  a 
copy  of  the  writ  and  a  notice  that  such  credits,  or 
other  property,  or  debts,  as  the  case  may  be,  are 
attached,  in  pursuance  of  such  writ.  (§  543,  C.  C.  P.) 
In  serving  a  garnishment,  and  where  the  person  so 
served  refuses  to  give  to  the  officer  the  required 
statement  or  memorandum  of  the  debt  or  of  his 
having  the  credit,  it  is  proper  to  inform  him  that  the 
law  (§  546,  C.  C.  P.)  provides  that  the  party  refusing 
to  give  the  memorandum  may  be  required  to  pay  the 
costs  of  any  proceeding  taken  for  the  purpose  of 
obtaining  information  respecting  the  amounts  and 
description  of  such  debt  or  credit. 

§  121.  Notice  to  Garnishee. — To  render  the 
process  of  attachment  effectual  against  a  corporation, 
as  garnishee,  the  writ  and  notice  must  be  served  on 
the  president,  or  other  head  of  the  same,  or  the  sec- 
retary, cashier,  or  other  managing  agent  thereof.  In 
the  case  of  a  banking  corporation,  service  of  process 
on  the  teller,  whose  only  duty  is  to  receive  and  pay 
out  all  moneys  which  come  into  and  go  out  of  the  bank, 
is  not  sufficient  to  bind  the  corporation.  (Kennedy  v. 
Hibernia   Savings  and   Loan    Society,   38    Cal.    151.) 


§  122     ATTACHMENT  ON  PERSONAL  PROPERTY.       122 

A  savings  bank  cannot  avoid  its  liability  to  pay  over 
the  money  of  its  depositor,  on  a  garnishment  at  the 
suit  of  depositor's  creditor,  on  the  ground  that  its  by- 
laws, assented  to  by  the  depositor,  makes  his  pass-book, 
in  which  his  account  is  kept,  transferrable  to  order, 
(Witte  V.  Vincent,  43  Cal.  325.)  for  such  pass-book  is 
not  a  negotiable  instrument  in  a  commercial  sense,  nor 
can  the  agreement  of  the  parties  make  it  so, 

§  122.  Examination  of  Garnishee. — A  defend- 
ant in  an  action,  against  whom  a  writ  of  attachment 
has  been  issued,  cannot  be  compelled  to  attend  before 
the  judge  or  a  referee,  and  submit  to  an  examination 
as  to  the  condition  and  situation  of  his  property,  nor 
can  he  be  compelled  to  deliver  up  his  property.  i^Ex 
parte  Rickleton,  51  Cal.  316.)  The  court  held  that 
the  only  supposed  authority  for  such  a  step,  §  545  of 
the  Code  of  Civil  Procedure,  is  confined  to  proceedings 
against  persons  owing  debts  to  the  defendant,  or 
having  possession  of  credits  or  other  personal  pro- 
perty belonging  to  the  defendant.  It  is  in  that  section 
provided  in  terms  that  such  persons  may  be  required 
to  submit  to  examination  touchine  such  debts  or  such 
property,  and  the  order  to  be  made,  or  which  may  be 
made,  as  the  result  of  such  an  examination,  manifestly 
refers  to  the  disposition  of  property  not  in  the  hands 
or  under  the  personal  control  of  the  defendant,  but  in 
the  possession  or  under  the  control  of  the  garnishee. 
"The  provision  in  that  section,"  say  the  court,  "to  the 
effect  that  the  defendant  may  also  be  required  to 
attend  for  the  purpose  of  giving  information  respect- 
ing his  property,  does  not  look  to  the  entr)^  of  an 
order  directing  him  to  surrender  property  in  his  own 
possession,  but  merely  to  give  such  information,  under 


123        ATTACHMENT  ON  PERSONAL  PROPERTY.      §§  I  23-I  25 

oath  or  otherwise,  as  will  facilitate  the  examination  of 
a  garnishee  under  examination." 

When  the  garnishee  denies  that  he  is  indebted  to 
the  judgment  debtor,  neither  the  referee  nor  the  court 
has  power  to  compel  him  to  pay  to  the  sheriff  the 
amount  of  his  alleged  indebtedness,  but  the  court  may- 
enter  an  order  authorizing  the  judgment  creditor  to 
institute  an  action  against  the  garnishee  to  determine 
the  question  of  indebtedness.  (Hartman  v.  01vera> 
51  Cal.  501.) 

§  123.  Garnishment  of  Sum  Due  for  Home- 
stead.— If  the  wife  declares  a  homestead  on  common 
property,  and  the  husband  procures  a  policy  of  in- 
surance on  the  house  thereon,  and  the  house  is 
destroyed  by  fire,  the  sum  due  from  the  insurance 
company  is  not  subject  to  garnishment  by  a  judgment 
creditor  of  the  husband.       (Houghton  v.  Lee,  50  Cal. 

lOI.) 

§  124.  Liability  of  Garnishee. — A  garnishee 
can  only  be  required  to  answer  as  to  his  liability,  to 
the  debtor  defendant,  at  the  time  of  the  service  of  the 
garnishment.     (Norris  v.  Burgoyne,  4  Cal.  439.) 

§  125.  When  Garnishment  is  not  a  Lien. — 
Service  of  a  copy  of  the  writ  and  notice  of  garnish- 
ment upon  a  third  party,  constitutes  no  Hen  on  pro- 
perty of  the  defendant  in  the  hands  of  the  third  party, 
capable  of  manual  delivery.  The  Code  provides  one 
distinct  method  of  levying  upon  personal  property 
capable  of  manual  delivery,  and  another  equally 
distinct  method  of  levying  upon  personal  property 
not    capable    of   manual    delivery.       That    there    are 


§125  ATTACHMENT  ON  PERSONAL  PROPERTY.  1 24 

different  ways  pointed  out  to  the  officer  by  the  law,  in 
one  or  the  other  of  which  he  must  act,  according  to 
the  nature  of  the  property  he  is  about  to  seize,  should 
not  be  lost  sight  of  The  writ  affects  property  only 
from  the  time  of  the  levy.  A  case  in  point,  as  illus- 
trating the  danger  incurred  by  an  officer  in  not  ob- 
serving the  distinction  here  pointed  out,  is  that  of 
Johnson  v.  Gorham,  6  Cal.  210,  wherein  the  court 
said:  "  From  the  statement,  it  appears  that  plaintiff, 
having  recovered  in  the  superior  court  a  judgment 
against  one  Dockham,  took  out  an  execution  and 
placed  it  in  the  hands  of  defendant,  who  was  sheriff  of 
San  Francisco,  with  instructions  to  levy  on  and  sell 
certain  personal  property,  which  was  done,  and  a 
sufficient  sum  of  money  received  to  satisfy  the  plaint- 
iff's judgment ;  that  after  the  return  day  of  said 
execution,  he  demanded  of  defendant  the  amount  due 
on  his  execution,  and  that  defendant  refused  to  pay 
the  same." 

The  defendant,  after  admitting  the  facts  as  above, 
alleges  that,  prior  to  the  issuing  of  plaintiff's  execu- 
tion, one  Bean  had  caused  execution  to  issue  against 
the  same  defendant,  which  was  served  on  one  Libley, 
with  notice  that  all  the  property  and  effects  in  his 
hands,  belonging  to  defendant  in  execution,  were 
attached ;  that  the  property  sold  under  plaintiff's 
execution  was,  at  the  time  of  said  service,  in  the  hands 
of  Libley,  and  that  the  proceeds  of  the  sale  were 
claimed  by  Bean  under  his  execution.  He  therefore 
asks  that  the  court  will  determine  the  party  entitled 
to  receive  the  money.  The  court  rendered  judgment 
for  the  amount  collected,  with  twenty-five  per  cent, 
damages,  and  ten  per  cent,  per  month  interest  from 
the  date  of  the  demand. 


125  ATTACHMENT  ON  PERSONAL  PROPERTY.  §126 

Under  our  statute,  an  execution  affects  property 
only  from  the  time  of  levy.  Plaintiff's  execution  hav- 
ing been  first  levied,  should  be  first  satisfied,  notwith- 
standing there  may  be  another  and  an  older  execution 
against  the  same  defendant  in  the  hands  of  the  sheriff. 
The  service  of  a  copy  of  execution  and  notice  of 
garnishment  upon  a  third  party  constitutes  no  lien  on 
property  of  the  debtor  in  his  hands,  capable  of  manual 
delivery.  It  is  clear,  therefore,  that  plaintiff  was 
entitled  to  recover  from  the  sheriff  so  much  of  the 
proceeds  of  the  sale  as  was  sufficient  to  satisfy  his 
judgment. 

The  court,  however,  erred  in  giving  judgment  for 
damages.  In  Egery  v.  Buchanan,  5  Cal.  53,  this  court 
held  that  "statute  penalties  are  only  recoverable 
when,  by  the  return  of  the  sheriff,  he  admits  the 
collection  of  the  money  and  refuses  to  pay  it  over.  If 
it  were  otherwise,  an  error  of  judgment,  or  even  a 
hesitation  to  decide  between  adverse  claimants,  migrht 
work  the  ruin  of  an  honest  and  conscientious  officer." 

In  this  case  the  officer  appears  to  have  acted  in 
good  faith,  and  his  failure  to  pay  over  the  money  on 
the  request  of  plaintiff  arose  from  his  inability  to 
decide  between  the  conflicting  claims  of  plaintiff  and 
Bean. 

§  126.  Sale  of  Perishable  Property. —  If  an 
officer  attach  any  property  that  is  perishable,  he  need 
not  wait  for  a  judgment,  nor  need  he  apply  for  an 
order  of  court  to  sell  it.  He  is  required  by  §  547, 
C.  C.  P.,  to  sell  such  property  in  the  manner  in  which 
personal  property  is  sold  under  execution.  Notices 
of  the  time  and  place  of  sale  should  be  posted  in  three 
public  places  of  the  township,  or  city  (as  the  case  may 


§§127,128       ATTACHMENT  ON  TERSONAL  PROPERTY.        I  26 

be),  where  the  sale  is  to  take  place,  for  such  time  as 
may  be  reasonable,  considering  the  character  and 
condition  of  the  property.  The  proceeds  and  other 
property  attached  by  him  must  be  retained  by  him  to 
answer  any  judgment  that  may  be  recovered  in  the 
action,  unless  sooner  subjected  to  execution  upon 
another  judgment,  recovered  previous  to  the  issuing 
of  the  attachment. 


§  127.  Sheriff's  Receipt  a  Discharge. — Debts 
and  credits  due  to  a  defendant,  when  attached,  may 
be  collected  by  the  sheriff,  if  the  same  can  be  done 
without  suit ;  and  the  sheriff's  receipt  is  a  sufficient 
discharge  for  the  amount  paid.  (§  547,  C.  C.  P.) 
When  collected,  they  must  be  held  to  answer  the 
judgment. 

§  128.  Sales  by  Order  of  Court. — Whenever 
property  has  been  taken  by  an  officer  under  a  writ  of 
attachment,  and  it  is  made  to  appear  satisfactorily  to 
the  court  or  a  judge  thereof,  that  the  interest  of  the 
parties  to  the  action  will  be  subserved  by  a  sale 
thereof,  the  court  or  judge  may  order  such  property 
to  be  sold  in  the  same  manner  as  property  is  sold 
under  an  execution,  and  the  proceeds  to  be  deposited 
in  the  court,  to  abide  the  judgment  in  the  action. 
(§  548,  C.  C.  P.)  All  sales  of  property  under  execu- 
tion must  be  made  at  auction  to  the  highest  bidder, 
between  the  hours  of  nine  in  the  morning  and  five  in 
the  afternoon.  (§  694,  C.  C.  P.)  Sales  by  order  of 
the  court  must  be  made  by  posting  written  notice  in 
three  public  places  in  the  township  or  city  where  the 
sale  is  to  take  place,  for  not  less  than  five  nor  more 


127      ATTACHMENT  ON  PERSONAL  PROPERTY.     §  1 29 

than  ten  days,  except  where  the  time  of  sale  Is  fixed 
in  the  order  of  the  court. 

§  129.  Fraudulent  Transfers. — One  of  the  most 
difficult  obstacles  encountered  by  officers  in  holding 
property  belonging  to  the  judgment  debtor  in  execu- 
tions, arises  from  the  facility  with  which  transfers  may 
be  made  of  personal  property.  As  if  in  contemplation 
of  fraudulent  intention  on  the  part  of  vendors  who 
are,  or  are  about  to  become,  insolvent,  the  legislature 
has  hedged  such  sales  around  with  strongly  expressed 
provisions  in  favor  of  the  creditor  who  is  in  pursuit  of 
his  claim.  §  3440  of  the  Civil  Code  declares  that 
"Every  transfer  of  personal  property,  other  than  a 
thing  in  action,  or  a  ship  or  cargo  at  sea  or  in  a  foreign 
port,  and  every  lien  thereon,  other  than  a  mortgage, 
when  allowed  by  law,  and  a  contract  of  bottomry  or 
respondentia,  is  conclusively  presumed,  if  made  by  a 
person  having  at  the  time  the  possession  or  control  of 
the  property,  and  not  accompanied  by  an  immediate 
delivery,  and  followed  by  an  actual  and  continued 
change  of  possession  of  the  things  transferred,  to  be 
fraudulent,  and  therefore  void,  against  those  who  are 
his  creditors  while  he  remains  in  possession,  and  the 
successors  in  interest  of  such  creditors,  and  against 
any  persons  on  whom  his  estate  devolves  in  trust  for 
the  benefit  of  others  than  himself,  and  against  pur- 
chasers or  incumbrancers  in  good  faith  subsequent  to 
the  transfer." 

There  are  numerous  instances  of  record  in  which 
courts  have  been  called  upon  to  make  a  practical 
application  of  the  principle  that  a  vendee  of  personal 
property  must  assume  at  once  all  external  indicia  of 
title,  in  order  to  protect  himself  against  the  creditors 


§129  ATTACHMENT  ON  TERSONAL  PROPERTY.  128 

of  the  vendor.  In  this  State  the  statute  stands  upon 
the  extremest  rule  of  caution  and  promptitude.  The 
sale  must  be  "accompanied  by  an  immediate  delivery, 
and  be  followed  by  an  actual  and  continued  change  of 
possession."  (See  §§  3439,  3440,  3442,  Civil  Code.) 
The  statute  makes  certain  facts  conclusive  evidence  of 
fraud,  and  whatever  may  or  may  not  be  the  actual 
intention  of  the  parties,  if  the  actual  facts  exist  which 
are  contemplated  by  the  law,  the  sale  is  void.  The 
language  of  the  statute  is  exceedingly  strong,  and  the 
intention  manifest.  The  change  of  possession  from 
the  vendor  to  the  vendee  must  not  only  be  actual  but 
also  continued.  The  object  of  the  statute  being  the 
prevention  of  fraudulent  sales  of  goods,  no  means 
more  simple  and  efficient  could  have  been  adopted  to 
have  accomplished  the  end  intended,  than  that  re- 
quiring this  actual  and  continued  change  of  possession. 
It  takes  away  from  the  parties  the  means  of  carrying 
out  their  fraudulent  intent,  and  removes  the  temptation. 
As  the  fraudulent  vendor  cannot  remain  in  possession, 
under  any  pretense  whatever,  he  is  compelled  to  trust 
entirely  to  the  fidelity  of  the  fraudulent  vendee. 

To  constitute  a  valid  sale  of  personal  property 
against  creditors,  there  must,  according  to  the  pro- 
visions of  the  statute  of  this  State,  be  "an  immediate 
delivery  thereof,  accompanied  with  an  actual  and 
continuous  change  of  possession."  By  an  immediate 
delivery  is  not  meant  a  delivery  instanter ;  but  the 
character  of  the  property  sold,  its  situation,  and  all 
the  circumstances  must  be  taken  into  consideration  in 
determining  whether  there  was  a  delivery  within  a 
reasonable  time,  so  as  to  meet  the  requirement  of  the 
statute  ;  and  this  will  often  be  a  question  of  fact  for 
the  jury.     (Samuels  v.  Gorham,  5  Cal.  236.) 


129  ATTACHMENT  ON  PERSONAL  PROPERTY.  §    1 29 

Where  the  purchasers  from  a  common  vendor  are 
equally  innocent,  or  equally  in  fault,  the  first  purchaser 
is  entitled  to  the  goods.  The  question  of  delivery 
and  change  of  possession  is  a  mixed  question  of  law 
and  fact ;  but  as  to  what  shall  constitute  a  delivery,  is 
a  question  of  law  alone.  The  question  of  the  intention 
of  the  parties  should  not  be  submitted,  to  the  jury. 
Where  H.,  the  owner  of  barley,  which  he  has  piled  up 
in  his  corral,  sells  five  hundred  sacks  thereof  to  V., 
who  has  it  separated,  marked  "V,"  and  piled  up  in 
another  part  of  the  corral,  and  employs  a  third  person 
to  take  care  of  the  same  for  him,  and  H.  afterwards 
sells  and  delivers  the  same  to  B. :  Held,  that  B.  was 
entitled  to  the  property,  the  sale  from  H.  to  V.  not 
being  followed  by  an  actual  and  continued  change  of 
possession.      (Vance  v.  Boynton,  8  Cal.  554.) 

A  delivery  of  a  warehouse  receipt,  stating  that  the 
goods  named  therein  are  deliverable  on  return  of  the 
receipt,  is  sufficient  prima  facie  to  pass  the  title. 
There  is  no  substantial  difference  in  this  respect 
between  a  warehouse  receipt  and  a  bill  of  lading. 
When  the  defendants  show  that  the  person  to  whom, 
in  his  own  name,  the  receipt  was  given,  and  who 
passed  it  to  plaintiff,  was  their  agent  or  broker,  acting 
for  them,  but  permitted  to  keep  it  on  storage  in  his 
own  name,  they  do  not  rebut  the  prima  facie  case 
made  out  by  the  plaintiffs,  by  the  possession  of  the 
receipt.      (Horr  v.  Barker,  8  Cal.  610.) 

Where  the  owner  of  a  certain  number  of  barrels  of 
flour,  on  storage  in  a  warehouse,  sold  them  all  to 
different  purchasers,  giving  them  orders  on  the  ware- 
houseman, which  was  given  by  the  purchasers  to  the 
warehouseman,  and  new  receipts  given  to  them  in 
their  own  names  by  the  latter,  and  entries  made  on 
9 


§129  ATTACHMENT  ON  PERSONAL  PROPERTY.  1 3O 

his  books  charging;  the  vendor,  and  crediting  the 
purchasers  with  their  respective  lots  :  Held,  that  there 
was  a  sufficient  dehvery  of  possession  without  a 
separation  of  the  various  lots. 

Where  a  vendor  only  sells  a  part  of  goods  on 
storage,  those  sold,  if  all  together  and  of  the  same 
mark,  must  be  separated  from  the  larger  mass,  in  order 
to  cliange  the  possession  ;  but  where  all  the  goods  of 
the  vendor  in  the  hands  of  a  third  party  are  sold,  the 
change  of  possession  is  complete  by  delivery  of  the 
order,  taking  a  new  receipt,  and  entry  of  the  trans- 
action on  the  books  of  the  warehouseman.  (Horr  v. 
Barker,  8  Cal.  603.) 

Where  A.  had  a  large  quantity  of  flour  stored  in 
the  warehouse  of  B.,  and  sold  a  portion  of  it  to  C, 
and  gave  an  order  for  the  flour  sold  on  B.,  who  ac- 
cepted the  same  and  gave  C.  in  exchange  a  receipt 
for  the  same,  and  transferred  it  on  his  warehouse 
books  to  the  account  of  C,  but  did  not  separate  any 
specific  portion  from  the  flour  of  A.,  as  the  property 
of  B.,  and  the  whole  was  subsequently  seized  in  an 
action  against  A. :  Held,  that  the  sheriff  was  not  liable 
to  C,  in  the  absence  of  segregation  of  the  flour,  but 
that  B.  was  estopped  by  his  receipt  from  denying  his 
liability.  (Adams  v.  Gorham.  6  Cal.  75.)  This  action 
being  for  the  recovery  of  specific  property,  it  was 
necessary  to  show,  as  against  the  sheriff,  that  the 
portion  claimed  by  the  plaintiffs  had  been  severed  and 
desio-nated  from  the  bulk  out  of  which  it  was  sold. 
Otherwise  there  is  no  mode  of  identification. 

Where  the  owner  of  goods  made  a  bona  fide  sale  of 
them  to  a  purchaser,  and  delivered  possession  of  them 
to  him,  and  the  purchaser,  immediately  after,  appoint- 
ed the  former  owner  of  them  his  agent,  to  take  charge 


131  ATTACHMENT  ON  PERSONAL  PROPERTY.  §129 

of  them  and  sell  them,  and,  for  that  purpose,  re- 
delivered the  possession  of  them  to  him  :  Held,  that 
the  sale  was  fraudulent  and  void,  as  against  the 
creditors  of  the  original  owner.  (Fitzgerald  v.  Gorham, 
4  Cal.  289.) 

A  bill  of  sale  of  "all  the  goods  and  merchandise 
and  property  we  own,  have,  or  have  an  interest  in,  in 
a  store  in  Nevada,  county  of  Nevada,  formerly  oc- 
cupied by  Bailey  Gatzert,  and  now  in  possession  of 
the  sheriff  of  Nevada  county,  said  goods  forwarded 
by  us  to  Bailey  Gatzert,  Nevada,"  is  held  by  the 
supreme  court  to  contain  a  sufficient  description  of 
the  goods. 

The  plaintiffs  purchased  from  B.  a  certain  number 
of  cattle,  and  presented  to  C.,  the  agent  of  B.,  an 
order  for  their  delivery.  C.  pointed  out  the  cattle  to 
one  of  the  plaintiffs  as  they  were  grazing  in  view,  and 
told  him  that  he  delivered  him  possession,  and  then 
accepted  an  offer  of  employment  from  the  plaintiffs, 
and  remained  in  charge  of  the  catde  until  they  were 
seized  by  the  defendant :  Held,  that  this  was  a  de- 
livery as  immediate  and  as  complete  as  the  nature  of 
the  case  would  admit,  and  followed  by  an  actual  and 
continued  change  of  possession.  (Montgomery  v. 
Hunt,  5  Cal.  372.) 

In  Engles  v.  Marshall,  et  al.  (19  Cal.  334),  the 
supreme  court  affirms  a  former  decision  concerning 
change  of  possession  of  personal  property,  as  follows : 
"  In  Stevens  v.  Irwin  (15  Cal.  506),  we  said  :  '  Delivery 
must  be  made  of  the  property ;  the  vendee  must  take 
the  acfical  possession  ;  that  possession  must  be  open 
and  unequivocal,  carrying  with  it  the  usual  marks  and 
indications  of  ownership  by  the  vendee.  It  must  be 
such  as  to  give  evidence  to  the  world  of  the  claims  of 


§129  ATTACHMENT  ON  PERSONAL  PROPERTY.  1 32 

the  new  owner.  He  must,  In  other  words,  be  in  the 
usual  relation  to  the  property  which  owners  of  goods 
occupy  to  their  property.  This  possession  must  be 
continuous — not  taken  to  be  surrendered  back  again 
— not  formal,  but  substantial.  But  it  need  not  neces- 
sarily continue  indefinitely  when  it  is  bona  fide  and 
openly  taken,  and  it  is  kept  for  such  a  length  of  time 
as  to  give  general  advertisement  of  the  status  of  the 
property  and  the  claim  to  it  by  the  vendee.'  " 

The  change  of  the  property  sold  must  be  continued. 
The  statute  does  not  fix  any  limits  when  this  change 
may  cease  ;  and  if  courts  would  put  limits  to  it.  they 
could  do  away  with  the  clear  language  of  the  law. 
(Bacon  v.  Scannell,  9  Cal.  272.) 

Where  the  plaintiff  bought  eight  hundred  sacks  of 
Hour,  on  storage  in  a  w^arehouse,  which  stood  therein 
as  a  separate  pile,  the  number  of  sacks  of  which  was 
ascertained  by  counting  the  outside  rows,  and  the 
number  in  the  pile  marked  on  one  of  the  sacks,  and  it 
was  thus  delivered  to  the  purchaser,  who  permitted  it 
to  remain  in  the  same  place,  where  it  v\'as  several 
days  afterwards  attached  as  the  property  of  the  vendor : 
Held,  that  the  delivery  was  sufficient  and  the  sale 
valid.  It  was  not  necessary  for  the  vendee  to  remove 
the  property  from  the  house  where  it  w^as  at  the  time 
of  the  purchase,  to  bring  himself  within  the  statute. 
(Bacon  v.  Scannell,  7  Cal.  275.) 

In  an  action  against  a  sheriff,  to  recover  the  value 
of  a  stock  of  croods  taken  under  attachment  and 
claimed  by  a  third  person,  testimony  showing  a  fraud- 
ulent design  Is  admissible  under  the  allegations  of  an 
answ^er  charging  that  the  sale  was  made  to  defraud 
creditors,  although  the  testimony  does  not  connect  the 
purchaser  with  the  fraud,  or  show  that  he  was  cog- 


133  ATTACHMENT  ON  PERSONAL  PR(Jl'ERTY.  §    1 29 

nizant  of  such  fraudulent  design.  Such  testimony 
would  not  of  itself  vitiate  the  sale  to  an  innocent 
purchaser  without  notice  and  for  a  valuable  consider- 
ation ;  but  the  fraudulent  intent  of  the  vendor  being 
established,  the  jury  must  determine  from  the  circum- 
stances of  the  case,  whether  the  purchaser  participated 
in  the  fraud.  Evidence  that  the  judgment  debtor  had 
attempted  to  make  fraudulent  conveyances  of  his 
property  to  others  was  held  both  by  the  lower  court 
and  by  the  supreme  court  (Landecker  v.  Houghtalings, 
7  Cal.  391,)  to  be  admissible. 

Where  the  plaintiff  took  a  mortgage  upon  one 
thousand  sacks  of  flour,  and  took  the  warehouseman's 
receipt  therefor,  and  subsequently  requested  the  ware- 
houseman to  segregate  the  particular  flour  from  a 
large  quantity  belonging  to  the  mortgagor,  and  the 
warehouseman  accordingly  put  plaintiff's  mark  on  a 
pile  of  eleven  hundred  and  ninety-six  sacks  of  the 
mortgagor,  standing  separate  from  the  rest :  Held, 
that  it  was  a  good  segregation.  This  delivery  des- 
troyed the  privity  between  the  warehouseman  and  the 
mortgagor,  and  made  the  former  agent  of  the  mort- 
gagee alone,  with  whom  he  might  adjust  for  the  excess. 

Where  the  sheriff  wrongfully  took  possession  of 
the  goods,  and  thereby  deprived  the  plaintiff  of  them, 
the  fact  that  they  were  taken  by  the  coroner,  under  a 
writ  ao-ainst  the  sheriff,  before  the  latter  had  removed 
them,  does  not  excuse  his  tort.  (Squires  z>.  Payne.  6 
Cal.  654.) 

If  a  vendor  of  goods  in  the  care  and  keeping  of  a 
third  person  directs  him  to  deliver  them  to  the  vendee, 
and  the  party  holding  the  goods  consents  to  retain  the 
goods  for  him,  and  does  so  retain  them,  it  is  a  sufficient 
delivery  and  change  of  possession  to  satisfy  the  re- 


§129  ATTACHMENT  ON  PERSONAL  PROPERTY.  1 34 

quirements  of  §  3440  of  the  Civil  Code.     (Williams  v. 
Lerch,  56  Cal.  330.) 

The  purchaser  or  mortgagee  of  a  kiln  of  bricks, 
while  being  burned,  must  take  that  possession  of  the 
property  which  places  him  in  the  relation  to  the  same 
that  owners  usually  have  to  a  like  kind  of  property,  in 
order  to  secure  it  against  attaching  creditors  of  the 
vendor.  (Woods  v.  Bugbey,  29  Cal.  467.)  If  the 
owner  of  a  kiln  of  bricks,  before  the  burning  of  the 
same  has  been  completed,  makes  a  sale  thereof  in 
good  faith,  and  for  a  valid  consideration,  to  a  creditor, 
and  the  vendor  completes  the  burning  of  the  kiln, 
exercising  the  same  apparent  control  as  before,  the 
sale  is  to  be  deemed  fraudulent  as  to  an  attaching 
creditor  for  want  of  a  change  of  possession. 

If  a  sale  of  property  is  made  which  is  fraudulent  as 
to  creditors  of  the  vendor,  and  the  vendee  then  sells 
to  a  third  person,  in  whose  hands  the  goods  are 
attached  by  a  creditor  of  the  first  vendor,  and  the 
creditor,  in  an  action  against  the  sheriff,  attacks  the 
sale  as  a  fraud  on  creditors,  this  admits  the  validity  of 
the  sales  as  between  the  vendors  and  vendees,  and 
the  creditor  must  show  that  the  second  vendee  was  a 
party  to  the  fraud.  The  burden  of  proving  the  fraud 
is  on  him  ;  and  the  questions  whether  the  second 
vendee  had  notice  of  the  fraud  of  the  first  sale,  or  was 
an  innocent  purchaser,  or  whether  the  second  vendee 
paid  a  valuable  consideration,  have  no  application  to 
the  case.  Such  quesdons  apply  only  to  a  case  where 
property  is  purchased  by  such  fraudulent  represent- 
ations as  will  vitiate  the  sale  between  the  vendor  and 
vendee.     (Thornton  v.  Hook,  36  Cal.  223.) 

A  sale  of  merchandise  by  bill  of  sale,  the  goods 
remaining  in  the  possession  of  the  vendors  as  ware- 


135  ATTACHMENT  ON  PERSONAL  PROPERTY.  §    1 29 

housemen  at  a  regular  charge,  and  their  receipt  given 
for  the  goods  on  storage,  the  vendors  doing  business 
as  commission  merchants,  and  sometimes  receiving 
goods  on  storage,  is  void  as  to  the  creditors  of  the 
vendors.  (Stewart  z^.  Scannell,  8  Cal.  8i.)  Idan. — 
Change  of  possession  requisite. — The  absence  of  any 
fraudulent  intent  will  not  take  the  case  out  of  the 
statute.  There  must  be  an  actual  and  continued 
change  of  possession,  or  the  sale  is  void  as  to  cred- 
itors. 

A  sale  of  personal  property,  to  be  valid  against 
creditors,  must  be  accompanied  by  an  actual  and  con- 
tinued change  of  possession.  (Whitney  v.  Stark,  8 
Cal.  514.) 

A  sale  of  personal  property,  unaccompanied  by 
immediate  delivery,  is  void  as  to  creditors,  and  this, 
though  delivery  be  made  before  levy  is  made  by  the 
creditors.      (Chenery  z^.  Palmer,  6  Cal.  119.) 

In  an  action  brought  by  a  vendee  of  personal  pro- 
perty against  a  sheriff,  to  recover  possession  of  the 
same,  where  the  sheriff  claims  the  property  under  an 
execution  in  favor  of  a  creditor  of  the  vendor,  and 
attacks  the  sale  for  fraud,  if  the  testimony  is  conflicting 
as  to  whether  there  was  an  actual  and  continued 
change  of  possession  in  the  plaintiff  after  the  sale  to 
him,  this  question  should  be  submitted  to  the  jury. 
If,  however,  the  facts  are  undisputed,  it  is  a  question 
of  law  whether  these  facts  constitute  a  continued  and 
exclusive  possession  in  the  vendee.  (Hodgkins  v. 
Hook,  23  Cal.  581.) 

Where,  after  a  sale  of  personal  property,  the  cred- 
itors of  the  vendor  attack  the  same  for  fraud,  and,  on 
the  trial,  there  is  evidence  that  the  vendee,  after  the 
sale  and  delivery,  exercised  some  slight  acts  of  owner- 


§129  ATTACHMENT  ON   PERSONAL  PROPERTY.  1 36 

ship  and  control  over  the  property,  but  this  is  not 
shown  to  have  been  done  with  the  knowledge  or 
consent  of  the  vendor,  the  fact  that  the  vendor  does 
not  offer  any  evidence  explanatory  of  the  vendee's 
acts,  does  not  add  anything  to  the  weight  of  the 
evidence  touching  the  vendee's  connection  with  the 
property. 

One  Strauss,  a  clothing  merchant,  whose  goods 
were  under  attachment,  sold  them  to  Weil,  who  pro- 
cured the  release  of  the  attachment,  and  removed  the 
stock  to  his  (Weil's)  cigar  store.  Within  less  than 
two  weeks  thereafter,  Strauss  was  engaged  professedly 
as  employee  of  Weil  in  peddling  out  the  goods  and 
managing  their  sale  at  retail,  in  which  condition  they 
were  again  attached  as  the  property  of  Strauss :  Held, 
that  there  was  no  such  actual  and  continued  chanoe  of 
possession  as  was  required  by  the  fifteenth  section  of 
the  Statute  of  Frauds,  and  that  the  goods  were  there- 
fore liable  to  the  attachment.       (Weil  v.  Paul,  22   Cal. 

493-) 

In  an  action  against  a  sheriff  for  taking  goods  from 
the  possession  of  the  plaintiff  where  the  defendant 
justifies  under  a  writ  of  attachment  against  a  third 
person,  and  alleges  a  fraudulent  sale  from  such  third 
person  to  the  plaintiff,  proof  of  the  debt  on  which  the 
writ  of  attachment  was  based  is  necessary  for  no  other 
purpose  than  as  the  foundation  for  proof  that  the  sale 
was  void  as  to  creditors.     (Mamlock  v.  White,  20  Cal. 

598.) 

Where  a  vendee  of  personal  property  buys  it  bo7ia 
fide,  takes  possession  openly,  and  holds  it  in  exclusive 
possession  for  a  year  or  more,  and  afterwards  puts 
the  property  into  the  possession  of  the  vendor,  as 
attorney  in  fact  of  the  vendee,  this  qualified  possession 


137  ATTACHMENT  ON  PERSONAL  PROPERTY.  §    1  29 

of  the  vendor  does  not,  as  matter  of  law,  show  the 
sale  to  be  fraudulent  and  void  as  against  the  creditors 
of  the  vendor.      (Stevens  v.  Irwin,  sheriff,  15  Cal.  503.) 

Every  sale  of  property  and  personal  chattels  is  good 
between  the  parties,  and  cannot  be  attacked  for  fraud, 
except  by  a  creditor  who  has  recovered  judgment  and 
taken  out  execution  against  the  vendor,  which  has 
been  returned  unsatisfied,  in  whole  or  in  part — with 
the  single  statutory  exception  of  an  attaching  creditor, 
and  his  remedy  being  unknown  to  the  common  law, 
he  must  show  affirmatively  that  his  attachment  has 
been  properly  issued  under  the  statute,  before  he  can 
attack  the  sale.      (Thornburg  z>.  Hand,  7  Cal.  537.) 

Hay  cut  on  land  in  possession  of  B.  lies  in  three 
fields,  or  about  one  hundred  and  fifty  acres,  in  swaths, 
cocks,  winrows,  and  stacks.  Plaintiffs  mowed  it,  and 
boarded  with  B.  B.  mortgages  the  hay  to  plaintifts 
for  work,  and  they  cease  to  board  with  B.,  whose 
dwelling  is  separated  from  these  fields  by  a  fence. 
Plaintiffs  proceed  to  gather  and  stack  the  hay,  until 
the  levy  of  an  execution  on  it,  eight  days  afterwards, 
by  defendant  as  B.'s  property  :  Held,  that,  even  con- 
ceding removal  from  the  premises  to  be  essential  to  a 
complete  delivery  of  the  hay,  still,  plaintiffs  were 
entitled  to  reasonable  time  to  do  it,  and  that  the  court 
erred  in  assuming  as  matter  of  law  that  eight  days 
was  too  long.      (Chaffin  v.  Doub,  14  Cal.  384.) 

The  statute  of  frauds  of  this  State  enacts  that  "  no 
mortgage  of  personal  property  hereafter  made  shall  be 
valid  against  any  other  persons  than  the  parties  thereto, 
unless  possession  of  the  mortgaged  premises  be  deliv- 
ered to  and  retained  by  the  mortgagee."  A  mortgage 
stipulating  for  the  enjoyment  of  the  possession  of  per- 
sonal property  by  the  mortgagors  until  breach  of  the 


§130  ATTACHMENT  ON  PERSONAL  PROPERTY.  1 38 

condition,  is  invalid  under  the  seventeenth  section  of 
our  statute  of  frauds,  as  to  all  persons  except  the 
parties  to  it.  Under  such  a  mortgage  the  mortgagee 
cannot  claim  the  right  of  possession  as  against  a 
sheriff  who  has  attached  the  property  as  that  of  the 
mortgagors.      (Morgan  v.  Lowe,  5  Cal.  329.) 

When  property  which  has  been  sold  is  afterwards 
levied  upon  and  sold  under  an  execution  by  a  creditor 
of  the  vendor,  and  suit  is  brought  by  the  vendee  to 
recover  damages  for  the  alleged  wrongful  taking,  and 
the  defence  is,  that  the  sale  was  made  to  defraud  cred- 
itors, and  that  there  was  no  immediate  delivery  or  con- 
tinuous change  of  possession,  the  statements  of  the 
vendor,  whether  made  before  or  after  the  sale,  are 
competent  evidence  to  prove  the  fraud  as  against  him. 
Whether  the  statements  of  the  vendor  are  evidence 
against  the  vendee,  depends  on  circumstances.  If 
made  before  the  sale  is  completed,  they  are  evidence 
against  the  vendee.  (Gallagher  v.  Williamson,  23  Cal. 
332.) 

§  130.  Officer's  Right  to  Indemnity. — When  an 
attachment  or  execution  is  placed  in  the  hands  of  an 
officer  to  be  executed,  he  may  demand  indemnity  of 
the  plaintiff  in  the  execution  before  he  can  be  required 
to  seize  property  in  possession  of  third  parties  claim- 
ing to  be  the  owners,  and  if  the  plaintiff,  upon  de- 
mand, fails  to  indemnify  the  officer,  and  he,  thereupon, 
returns  the  writ  miila  bo/ia,  an  action  for  false  return 
cannot  be  maintained,  even  if  it  should  turn  out  that 
the  goods  so  found  in  the  hands  of  strangers  claiming 
to  own  them,  were  the  goods  of  the  defendant  in  the 
writ.  This  declaration  appears  in  the  opinion  of  the 
court  in  the  case  of  Long  v.  Neville,  36  Cal.  459,  but 


139      ATTACHMENT  ON  PERSONAL  PROPERTY.     §  13  I 

it  is  qualified  by  the  further  statement  that,  "Where 
statutes  exist  providing  for  calHng  a  sheriff's  jury 
preliminary  to  demanding  indemnity,  it  may  be  neces- 
sary to  call  a  jury  before  demanding  the  indemnity, 
unless  the  calling  of  a  jury  be  waived."  An  officer 
called  upon  to  serve  a  precept,  either  by  attaching 
property  or  arresting  the  person,  if  there  be  any  rea- 
sonable grounds  to  doubt  his  authority  to  act  in  the 
particular  case,  has  a  right  to  ask  for  an  indemnity. 

He  is  not  obliged  to  serve  process  in  civil  actions 
at  his  own  peril,  when  the  plaintiff  in  the  suit  is  pre- 
sent, and  may  take    the   responsibility  upon    himself. 

The  risk  he  is  required  to  run  is  not  for  himself,  but 
for  the  benefit  of  the  attaching  creditor.  If  the  goods, 
moreover,  as  the  creditor  alleges,  are  the  property  of 
his  debtor  beyond  dispute,  he,  the  creditor,  cannot  be 
injured  by  giving  the  indemnity,  and  if  they  are  not, 
it  is  right  that  he  who,  for  his  own  supposed  advantage, 
insists  on  the  seizure,  should  take  the  consequences 
of  the  act. 

§  131.  Trial  by  Sheriff's  Jury. — Before  calling  a 
jury  to  try  the  rights  of  property,  the  officer  should 
notify  the  plaintiff  or  his  attorney  of  the  claim  and  of 
his  intention  to  summon  a  jury,  so  that  he  may,  if  he 
wish,  waive  the  calling  of  the  jury  and  elect  to  give  to 
the  officer  an  indemnity  bond  against  the  claim.  If 
the  plaintiff  waive  a  trial  by  jury,  and  give  the  bond 
with  sureties  satisfactory  to  the  officer,  it  is  the  duty 
of  the  latter  to  go  on  and  make  the  judgment.  The 
officer  then  becomes  the  agent  of  the  plaintiff,  and 
must  depend  upon  him  and  the  sureties  for  protection 
against  any  suit  the  claimant  may  bring  against  him, 
by  reason  of  the  seizure  and  sale  of  the  property. 


§§132-134       ATTACHMENT  ON  PERSONAL  PROPERTY.        1 40 

§  132.  Sheriff  as  Agent. — When  the  sheriff  at- 
taches property  of  the  defendant,  he  does  it  as  the 
officer  of  the  law.  If  it  is  not  the  property  of  the 
defendant,  he  is  the  agent  of  the  attaching  creditor. 
(Davidson  z'.  Dallas,  8  Cal.  227.) 

§  133.  Sheriff's  Jury  no  Protection. — The  trial 
of  right  of  property  by  a  sheriff's  jury  determines  and 
fixes  the  right  of  no  one,  except  the  right  of  the  officer 
to  demand  indemnity,  and  doubtless  was  intended  for 
that  purpose.  If  their  verdict  be  against  the  claimant, 
he  may  yet  bring  his  action  for  trespass  or  replevin. 

If  it  should  be  against  the  plaintiff  in  attachment  or 
execution,  and  he  indemnify  the  officer,  then  the  officer 
is  bound  to  hold  the  goods,  and  the  claimant  must 
bring  his  action  or  lose  his  rights.  If  the  plaintiff  give 
the  bond  of  indemnity,  it  will  only  inure  to  the  benefit 
of  the  owner  of  the  property,  so  far  as  the  conse- 
quences which  result  from  his  own  acts  are  concerned. 

The  verdict  of  a  sheriff's  jury  is  no  protection  to 
the  officer  in  a  suit  brouo-ht  ao-ainst  him:  and  it  is  held 
(in  Perkins  z'.  Thornburg,  10  Cal.  191  ;  and  Sheldon 
z>.  Loomis,  28  Cal.  123)  that  such  a  verdict  is  not 
admissible  in  evidence  as  a  defense.  When  an  officer 
has  reason  to  believe  that  property  seized  under 
attachment  or  execution  belono-s  to  a  straneer  to  the 
writ,  he  should  for  his  own  protection  and  in  the 
interests  of  all  others  concerned,  inquire  into  the 
ownership  thereof 

§  134.  Summoning  Sheriff's  Jury. — If  any  per- 
sonal property  attached  be  claimed  by  a  third  person 
as  his  property,  the  sheriff  may  summon  a  jury  of  six 
men  to  try  the  validity  of  such  claim,  and  such  pro- 


141  ATTACHMENT  ON  PERSONAL  PROPERTY.  §135 

ceedings  shall  be  had  thereon,  with  the  like  effect,  as 
in  case  of  a  claim  after  levy  upon  execution.  (§  549, 
C.  C.  P.)  He  may  go  upon  the  street,  or  anywhere 
in  the  county,  and  orally  summon  persons  qualified  as 
jurors.  '  He  must  give  notice  of  the  claim  and  of  the 
time  of  trial  to  the  plaintiff,  who  may  appear  and 
contest  the  claim  before  the  jury.  The  jury  and 
witnesses  must  be  sworn  by  the  sheriff,  and  if  their 
verdict  be  in  favor  of  the  claimant,  the  sheriff  may 
relinquish  the  levy,  unless  the  judgment  creditor, 
within  a  reasonable  time,  give  him  a  sufficient  indem- 
nity for  proceeding.  The  fees  of  the  jury,  the  sheriff, 
and  the  witnesses  must  be  paid  by  the  claimant,  if  the 
verdict  be  against  him  ;  otherwise,  by  the  plaintiff. 
Each  party  must  deposit  with  the  sheriff,  before  the 
trial,  the  amount  of  his  fees  and  the  fees  of  the  jury, 
and  the  sheriff  must  pay  the  same  to  the  prevailing 
party. 

Juries  of  inquest  shall  be  summoned  by  the  officer 
before  whom  the  proceedings  in  which  they  are  to  sit 
are  to  be  had,  or  by  any  sheriff,  constable,  or  police- 
man, from  the  persons  competent  to  serve  as  jurors, 
resident  of  the  county,  or  city  and  county,  by  notifying 
them  orally  that  they  are  so  summoned,  and  of  the 
time  and  place  at  which  their  attendance  is  required. 
(§  235,  C.  C.  P.) 

§  135.  Joint  Trespassers. — Where  property  was 
seized  under  two  attachments,  and  the  property  was 
claimed  by  a  third  party,  whereupon  both  attaching 
creditors  indemnified  the  sheriff,  who  went  on  and  sold 
it,  and  paid  the  proceeds  to  the  first  attaching  creditor, 
the  amount  not  equalling  his  judgment ;  and  after- 
wards, the  party  claiming  the  property,  obtained  judg- 


§§136-138       ATTACHMENT  ON  PERSONAL  PROPERTY.        I  42 

ment  against  the  sheriff  for  the  value  of  the  property  : 
Held,  that  the  recourse  must  be  had  against  the  first 
attaching  creditor,  for  whose  benefit  the  property  was 
sold.  In  such  case,  the  attaching  creditors  do  not 
stand  in  the  position  of  joint  trespassers,  the  seizure 
of  the  second  being  subject  to  the  first.  The  sheriff 
was  the  separate  agent  of  both  attaching  creditors, 
but  in  the  order  stated,  and  as  he  disposed  of  the 
property  to  the  benefit  of  the  first  alone,  he  must  look 
to  him,  and  not  the  second  attaching  creditor.  (David- 
son V.  Dallas,  8  Cal.  227.) 

§  136.  Property  Released  by  Judgment  for 
Defendant.  —  If  the  defendant  recover  judgment 
against  the  plaindff,  any  undertaking  received  in  the 
action,  all  the  proceeds  of  sales  and  money  collected 
by  the  sheriff,  and  all  the  property  attached  remaining 
in  the  sheriff's  hands,  must  be  delivered  to  the  defend- 
ant or  his  agent.     (§553^  C.  C.  P.) 

§  137.  Judgment  for  Defendant  Dissolves  an 
Attachment. — In  case  of  a  dismissal  of  an  action  by 
a  justice  of  the  peace  for  non-appearance  of  the 
plaindff,  the  judgment  for  defendant  operates  as  a 
dissoludon  of  an  attachment,  although  the  justice 
reinstates  the  case,  and  the  pardes  appear  and  try  it. 
(O'Connor  v,  Blake,  29  Cal.  313.) 

§  138.  Death  of  Defendant  Destroys  Attach- 
ment Lien. — If  the  defendant  die  after  the  levy  of 
an  attachment  upon  his  property,  and  before  judgment, 
his  death  destroys  the  lien  of  the  attachment,  and  the 
attached  property  passes  into  the  hands  of  the  admin- 
istrator, to  be  administered  on  in  due  course  of 
administration.     (Myers  v.  Mott,  29  Cal.  351.) 


143       ATTACHMENT  ON  PERSONAL  PROPERTY.     §  1 39 

§  139.      Release  of  Personal  Property. — When 
an  attachment  on  personal  property  is  released,  the 
property  should  be  returned  to  the  person  from  whom 
it  was  taken.     The  direction  to  release  the  attachment 
should  be   in  writing,   signed  by  the  plaintiff   or  his 
attorney.       There  may  be  circumstances  attending  a 
case   where    such    direction    should    come    from    the 
plaintiff's  attorney  and  not  from  the  plaintiff.      The 
plaintiff  may,  through  ignorance,  divest  himself  of  his 
ricrhts  by  causing  a  release  to  be  precipitately  made  ; 
and,  hence,  as  a  rule,  it  is  generally  most  prudent  to 
look  to  the  attorney  for  such  instructions.     In  the  case 
of  Perlberg  v.  Gorham,  lo  Cal.  121,  where  a  partner- 
ship existed  between  two  persons  in  the  purchase  of 
o-oods,  and  they  subsequently  brought  suit  to  recover 
their  value  from  a  trespasser  who  had  seized  them,  it 
was  held  that  one  partner  is  competent  to  execute  a 
release  in  the  name  of  himself  and  co-partner.     But 
it  is  not  always  safe  to  recognize  such  a  right.      In  the 
case  of  Perlberg  v.  Gorham,  23   Cal.  349,  the  defend- 
ant Gorham,  as  sheriff,   levied  on  goods  claimed  by 
the  plaintiffs.     After  suit  had  been  brought,  one  of  the 
attaching  creditors  procured  a  release  from  one  of  the 
plaintiffs,  executed  in  the  name  of  both,  of  all  actions, 
etc. ;    it  was  held  that  if  this  release  was  obtained  by 
fraud,    it  was  void,   and  the   sheriff  could  derive   no 
advantage  from  it,  although  he  was  not  implicated  in, 
and  knew  nothing  of  the  fraud. 

If,  after  an  execution  has  been  levied  on  sufficient 
property  to  satisfy  the  judgment,  the  court  orders  that 
the  judgment  be  not  enforced,  the  order  releases  the 
levy,  and  it  will  not  have  the  effect  of  satisfying  the 
judgment.      (Mulford  z-.  Estudillo,  22  Cal.  132.) 

In  the  attachment  of  personal  property,  the  officer 


§    139  ATTACHMENT  ON  PERSONAL  PROPERTY.  1 44 

is  responsible  for  its  value  from  the  moment  the  attach- 
ment is  levied.  If  the  plaintiff  recover  judgment,  he 
will  look  to  the  officer  for  the  value  of  the  goods  levied 
upon,   or    sufficient   thereof  to   satisfy  his  judgment. 

Hence,  it  will  be  seen  that  the  preservation  of  the 
property  is  of  the  utmost  importance.  If  the  property, 
or  any  portion  of  it,  be  not  forthcoming  at  the  proper 
time,  the  officer  must  make  the  loss  good.  When  a 
keeper  is  required,  the  officer  should  select  the  person 
who  is  to  take  care  of  the  property.  Neither  the 
plaintiff  nor  the  defendant  may  dictate  to  the  officer 
as  to  who  shall  take  charge  of  the  goods.  The  writ 
commands  him  to  "attach  and  safely  keep  the  pro- 
perty." He  should  make  the  expense  of  keeping  it 
as  light  as  possible,  consistent  with   its  safe-keeping. 

Where  a  mutual  friend  of  the  attaching  creditor  and 
debtor  offers  to  act  as  keeper  without  pay,  and  the 
offer  is  accepted,  a  stipulation  to  that  effect  should  be 
given  to  the  officer,  in  writing,  signed  by  the  creditor 
and  debtor  and  the  keeper.  Experience,  however, 
teaches  that  such  a  concession  is  often  productive  of 
annoyance  and  loss.  The  person  thus  acting  as 
keeper  is  likely  to  consider  himself  less  the  trusted 
agent  of  the  officer  than  the  obliging  friend  of  one  or 
the  other  of  the  litigants.  In  such  cases,  circumstances 
are  liable  to  arise  wherein  he  cannot  faithfully  serve 
two  masters — the  litigant  on  the  one  hand,  and  the 
officer  on  the  other.  Such  a  course  may  sometimes 
be  followed  with  safety,  when  there  is  but  one  attach- 
ment on  the  property.  But  if  a  second  writ  is  placed 
in  the  hands  of  the  officer,  the  officer  becomes  also 
liable  to  the  second  attaching  creditor,  and  should 
assume  such  control  over  the  goods  as  could  not  be 
questioned.     When  personal  property  is  released  from 


145  ATTACHMENT  ON  PERSONAL  PROPERTY.  §HO 

attachment,  the  officer  should  take  a  receipt  therefor 
from  the  person  to  whom  it  is  deHvered.  Where  the 
property  has  been  taken  from  the  defendant,  it  should 
be  returned  to  the  defendant  or  to  his  agent,  or  to 
such  person  as  the  defendant  may,  in  writing,  direct 
the  officer  to  deliver  it  to.  An  officer  cannot  with 
safety  ignore  these  seemingly  unimportant  business 
formalities.  A  sheriff  attached  the  contents  of  a  livery 
stable,  and  by  request  of  the  attaching  creditor  and 
debtor,  placed  a  mutual  friend  in  charge  as  keeper 
who,  by  verbal  agreement,  was  to  serve  without  pay. 
Some  days  afterwards  the  plaintiff  notified  the  sheriff 
that  the  suit  had  been  settled.  The  officer  returned 
the  writ  in  due  time  and  dismissed  the  affair  from  his 
mind.  In  the  meantime,  the  stable  had  changed  hands ; 
and  in  the  course  of  some  months  later,  the  defendant 
brought  an  action  against  the  officer  for  the  return  of 
the  property  attached  or  the  value  thereof.  The 
officer  found  to  his  cost  that  he  had  been  dealing  with 
unscrupulous  persons,  and  had  a  narrow  escape  from 
paying  a  heavy  pecuniary  penalty  for  his  laxity  in 
dealing  with  them  in  the  earlier  proceedings. 

§  140.  Return  of  Writ. — The  sheriff  must  return 
the  writ  of  attachment  with  the  summons,  if  issued  at 
the  same  time  ;  otherwise,  within  twenty  days  after  its 
receipt,  with  a  certificate  of  his  proceedings  indorsed 
thereon  or  attached  thereto.  (§  559,  C.  C.  P.)  In  com- 
puting the  time,  the  day  of  its  receipt  is  excluded  and 
the  last  day  included.  The  writ  of  attachment  must 
not  be  returned  until  the  last  day,  except  by  written 
instruction  from  the  plaintiff  or  his  attorney.  After 
having  made  a  levy  under  the  writ,  the  plaintiff  may 
find  other  property  which  he  desires  to  be  attached, 
10 


§  141     ATTACHMENT  ON  PERSONAL  PROPERTY.       1 46 

and  if  the  writ  has  been  returned,  he  will  lose  the 
opportunity  to  secure  such  other  property,  and  the 
sheriff  will  be  held  accountable  therefor. 

§  141.      What  the    Return    should    Contain. — 

The  sheriff's  return  upon  process  is  a  report  of  his 
proceedings  thereunder.  Where  the  language  of  the 
law,  which  requires  him  to  do  certain  things  in  the 
service  of  process,  is  mandatory,  he  should  make  the 
wording  of  his  return  conform  strictly  to  the  require- 
ments therein  expressed,  if  he  has  faithfully  followed 
those  requirements  in  making  the  service.  If  he  serve 
a  garnishment  upon  A.,  who  fails,  neglects,  and  refuses 
to  answer ;  and,  subsequently,  by  direction  of  the 
plaintiff,  he  serve  another  garnishment  upon  A.,  who 
answers  thereto  that  he  has,  or  has  not,  money  or 
goods  belonging  to  the  defendant,  the  officer  must 
make  return  of  both  services.  He  must  not  take  for 
granted  that  because  no  answer  was  made  by  A.  to 
the  first  garnishment,  it  was  a  useless  service,  and  that 
therefore  no  return  need  be  made  of  that  service  ;  for 
it  may  be  necessary  for  the  plaintiff  to  show  in  subse- 
quent proceedings  that  a  copy  of  the  writ  and  notice 
of  garnishment  had  been  served  upon  A.  at  the  time 
the  first  service  was  made. 


CHAPTER   VIII. 


EXECUTION LEVY  ON  PERSONAL  PROPERTY. 

§  142.  The  Writ. 

§  143.  Regularity  of  Writ  not  Protection  to  Sherifif. 

§  144.  Void  and  Voidable  Writs. 

§  145.  Void  as  to  Defendants  not  Served  with  Summons. 

§  146.  Writ  cannot  be  Received  on  Sunday. 

§  147.  Justices'  Court  Executions. 

§  148.  How  to  Determine  what  is  Exempt  from  Execution. 

§  148.  Liberal  Construction  of  Exemption  Law. 

§  148.  What  is  "  Necessary  Household  Furniture." 

§  148.  Exempt  Property  may  be  Levied  on  for  Purchase  Price. 

§  148.  Exemption  for  Farmers. 

§  148.  Exemption  for  Maimed  Persons. 

§  148.  When  a  House  is  Personal  Property. 

§  148.  Debtor  Limited  to  Choice  in  Exemptions. 

§  148.  Exemption  for  Mechanic,  Notary,  and  Physician. 

§  148.  Exemption  for  Miners. 

§  148.  Exemption  for  Laborer. 

§  149.  What  is  a  Teamster. 

§  150.  What  not  a  Teamster. 

§  151.  What  is  a  Laborer. 

§  152.  Teamster  or  Laborer. 

§  153.  Earnings  of  Judgment  Debtor. 

§  154.  Exemption  a  Personal  Right. 

§  155.  Debtor  must  Claim  within  Reasonable  Time. 

§  156.  Unreasonable  Delay  in  Claiming  Exemption. 

§  157.  Insufficient  Claim. 

§  158.  What  Constitutes  a  Reasonable  Time. 

§  159.  A  Stallion  not  Exempt. 


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200. 

LEVY  ON  PERSONAL  PROPERTY.  I  48 

Grain  on  Homestead  Land. 

Claim  Before  Sale. 

Sheriff  cannot  Sell  when  Stay  is  Ordered. 

Interest  under  Deed  of  Trust. 

Mining  Claim  Liable  to  Execution. 

Property  in  Custody  of  Law. 

Money  Deposit  to  Release  Attachment. 

Personal  Property  Mortgaged. 

Attachment  of  Growing  Crops. 

Other  Chattel  Mortgages. 

How  Growing  Crops  are  Attached. 

Property  held  as  Security. 

Sale  of  a  Road. 

Patent  Right  Attachable. 

Property  of  Inhabitants  of  County. 

Interest  of  Purchaser  at  Judicial  Sale. 

Fixtures. 

When  Fixtures  become  Personal  Property. 

Law  of  Exemptions. 

Within  what  Time  Execution  may  Issue. 

Execution  when  Judgment  not  Entered. 

Power  of  a  Justice  over  his  Judgments. 

Enjoining  Justices'  Judgments. 

Judgment  after  Filing  Homestead. 

Void  Judgment  and  Levy. 

Staying  Execution. 

When  Voidable. 

When  Amendable. 

Sales  when  Valid  and  when  Void. 

Not  open  to  Collateral  Attack. 

Executions  not  Void. 

Indemnity  Bonds  and  Sheriff's  Jury. 

Time  a  Bond  takes  Effect. 

What  the  Writ  must  Require. 

Execution  after  Death  of  a  Party. 

"  Receiving  "  the  Writ. 

Property  and  Property  Rights  Liable  to  Levy. 

Levy  upon  Judgments. 

Levy  and  Sale  of  Franchise. 

Redemption  of  Franchise. 

Property  of  Wife  not  Liable  for  Husband's  Debts. 


149  ^-E^'^'  ^^  PERSONAL  PROPERTY.      §§    1 42.    1 43 

§  201.  Delay  in  Service  of  Writ  Inexcusable. 

§  202,  Levy  on  Partnership  Property. 

§  203.  Garnishment  and  Demand. 

§  204.  Assignee's  Lien. 

§  205.  How  the  Writ  is  Executed. 

§  206.  Penalty  for  Refusing  to  Levy. 

§  207.  Senior  and  Junior  Writs. 

§  208.  How  Sheriff  should  Apply  Money  on  Execution. 

§  209.  Preferred  Labor  Claims. 

§  210.  Levy  and  Sale  of  Personal  Property. 

§  211.  Penalty  for  .Selling  without  Notice. 

§212.  When  Sale  should  be  Postponed. 

§  213.  The  Title  the  Purchaser  Secures. 

§  214.  When  Sheriff  may  Levy  on  Realty  instead  of  Personal 

Property. 

§  215.  Seizure  and  Sale  of  Promissory  Note. 

§  216.  Preventing  Bidding  at  Sale. 

§  217.  How  Sale  should  be  Conducted. 

§  218.  Re-sale  when  Bidder  Refuses  to  Pay. 

§  219.  Judgment  Payable  in  Money. 

§  220.  Purchaser  Entitled  to  Certificate  of  Sale. 

§  221.  Sale  of  Choses  in  Action. 

§  222.  Effect  of  Quashing  an  Execution. 

§  223.  Attachment  of  Vessels. 

§  224.  Sale  of  Vessel  and  Payment  of  Proceeds. 

§  142.  The  Writ. — Before  "receiving"  the  writ 
and  indorsing  upon  it  the  time  of  its  reception,  the 
officer  should  examine  it  to  satisfy  himself  that  it  is 
regular  on  its  face.  For  it  may  sometimes  happen, 
in  the  hurry  of  issuing  a  writ,  that  some  feature  es- 
sential to  its  validity  may  have  been  omitted  by  the 
clerk,  and  the  omission  have  passed  unnoticed  by  the 
person  to  whom  it  was  delivered. 

§  143.  Although  a  Writ  may  be  Regular  on 
its  Face,  yet  the  officer  will  not  go  harmless  if  he 
execute  it   if  there  were  defects  in    the  proceedings 


§  1 44         LEVY  ON  PERSONAL  PROPERTY.  I  50 

upon  which  it  was  issued.  Although  the  law  declares 
(§  4187,  Pol.  Code.)  that  "a  sheriff  or  other  ministerial 
officer  is  justified  in  the  execution  of  and  must  execute 
all  process  and  orders  regular  on  their  face  and  issued 
by  competent  authority,  whatever  may  be  the  defect  in 
the  proceedings  upon  which  they  were  issued,"  yet  if 
he  know  of  any  irregularity  in  those  proceedings  he 
will  put  himself  in  jeopardy  the  moment  he  proceeds 
to  execute  the  writ.  The  assurance  of  protection  to 
the  officer  implied  in  the  section  here  quoted,  is  to  be 
found  in  nearly  all  works  that  treat  upon  or  refer  to 
the  duties  of  ministerial  officers,  and  yet  there  are 
perhaps  but  few  such  officers  who  have  not  at  some 
time  or  other  found  themselves  in  the  position  of 
party  defendant  in  vexatious  and  expensive  suits,  by 
blindly  relying  upon  the  unqualified  promise  contained 
therein.  No  legislative  assurance  of  protection  to  an 
officer  for  serving  process  illegally  issued  can  divest  a 
party  aggrieved  by  reason  of  such  service  from  his 
right  to  seek  his  remedy  in  the  courts  against  the 
officer.  After  an  officer  has  been  brought  into  court 
in  an  action  against  him  for  taking  property  under  an 
illegal  process,  he  may  or  may  not  be  able  to  justify 
himself  and  avert  the  penalties  prescribed  for  willful 
wrong-doers,  but  his  justification  will  then  have  come 
too  late  to  shield  him  from  the  annoyances  and  ex- 
pense of  a  defense. 

§  144.  Void  and  Voidable  Writs. — Who  may 
issue  the  writ  of  execution,  its  form,  to  whom  it  must 
be  directed,  and  what  it  shall  require,  are  laid  down 
in  mandatory  terms  in  §  682  of  the  Code  of  Civil 
Procedure.  An  officer  should  satisfy  himself  by  an 
examination  of  the  writ  that  those  requirements  have 


151  LEVY  ON  PERSONAL  I'ROI'ERTY.  §    I  44 

been  complied  with.  The  decisions  of  the  courts  differ 
widely  as  to  the  responsibility  of  an  officer  in  execut- 
ing void  writs.  If  it  is  not  regular  on  its  face  he  may 
return  it  to  the  party  who  delivered  it  to  him,  who 
must  take  it  to  the  officer  who  issued  it  for  correction, 
if  the  error  is  such  that  correction  can  be  made.  A 
writ  is  not  regular  on  its  face  if  it  is  not  issued  in  the 
name  of  the  people,  nor,  (if  a  Superior  Court  writ)  if  it 
has  no  seal.  The  word  "seal"  includes  an  impression 
of  the  seal  required  to  be  used  upon  the  paper  alone 
as  well  as  upon  wax  or  a  wafer  affixed  thereto.  If  the 
writ  is  subscribed  by  a  deputy  clerk  and  not  by  his 
principal,  it  does  not  comply  with  the  law,  which  pro- 
vides that  it  must  be  subscribed  by  the  clerk.  Ex- 
ecutions that  are  not  regular  on  their  face  are  liable 
to  be  vacated ;  and,  although  irregular  and  voidable  in 
some  instances,  where  they  are  issued  upon  a  valid 
judgment,  the  officer  cannot  refuse  to  make  a  levy. 
If  an  execution  is  regularly  issued  on  a  valid  judg- 
ment, entered  on  a  default,  and  the  sheriff  levies  on 
property  by  virtue  of  the  same,  and  retains  it  several 
days,  until  the  default  is  opened  and  the  judgment  set 
aside,  and  then  returns  it  to  the  defendant,  the  plaintiff 
is  not  liable  in  damages  for  the  seizure  and  detention  of 
the  property,  so  that  he  acted  without  fraud.  (White 
V.  Adams,  52  Cal.  435.)  An  execution  issued  on  a 
void  judgment  will  be  set  aside.  A  joint  judgment 
rendered  against  two  partners,  where  but  one  of  them 
was  served  with  summons,  is  void.  A  judgment  is 
absolutely  void,  if  it  appear  that  there  was  a  want  of 
jurisdiction  in  the  court  rendering  it,  either  of  the 
subject  matter,  or  the  person  of  the  defendant.  In 
the  case  of  Rowley  v.  Howard,  23  Cal.  401,  wherein  a 
summons  was  served  by  a  deputy  sheriff  and  returned 


§  144        LEVY  ON  PERSONAL  PROPERTY.  I  52 

with  the  following  signature  to  the  return:  "Elijah  T. 
Cole,  D,  S.,"  and  judgment  was  rendered  by  default, 
it  was  held  that  the  judgment  was  null  and  void,  for 
want  of  jurisdiction.  When  the  summons  is  unauthor- 
ized and  void,  the  attachment  must  fall  also.  (Hisler 
V.  Carr,  34  Cal.  641.)  Judgment  by  consent  or  con- 
fession for  over  $300  in  a  Justices'  Court  is  void.  Unless 
an  execution  issue  within  five  years,  the  judgment  is 
void.  The  filing  and  docketing  of  a  transcript  of  a 
judgment  rendered  by  a  justice  of  the  peace  in  the 
offtce  of  the  clerk  of  the  county,  does  not  empower  the 
clerk  of  the  court  in  which  it  is  filed  and  docketed  to 
issue  an  execution  on  the  same  after  five  years  have 
elapsed  from  the  date  of  its  rendition.  (Kerns  v. 
Graves,  26  Cal,  156.)  If  an  officer  receives  an  execu- 
tion, and  he  knows  that  the  judgment  has  been  satis- 
fied, he  cannot  levy  thereunder. 

An  execution  must  be  warranted  by  the  judgment. 
If  it  exceeds  the  judgment  it  has  no  validity.  (Davis 
V.  Robinson,   10  Cal.  411.) 

If  an  execution  correctly  refers  to  a  judgment,  in 
such  manner  as  to  identify  it,  it  is  sufficient  to  justify 
the  sheriff  in  enforcing  it,  even  if  it  contains  an  error 
in  reciting  the  day  on  which  the  judgment  had  been 
rendered.      (Franklin  v.  Merida,  50  Cal,  289.) 

Executions  not  under  seal,  issued  from  a  court  which 
has  been  abolished,  or  is  not  of  competent  jurisdiction, 
or  upon  a  void  judgment,  or  upon  a  judgment  against 
an  administrator,  or  after  the  death  of  the  judgment 
debtor,  or  after  an  appeal  and  stay,  instanced  by  the 
court  as  probable  examples  of  void  executions.  (Hunt 
V.  Loucks,  38  Cal.  372,) 

The  plaintiff,  in  an  action  of  ejectment,  relied  upon 
an  execution  sale,  to  which  neither  he  nor  the  defend- 


153  LEVY  ON  PERSONAL  PROPERTY.   §§  1 45,  1 46 

ant  was  a  party.  The  execution  called  for  $695  more 
than  the  judgment,  but  corresponded  with  it  in  other 
respects :  Held,  that  the  execution  was  not  void,  but 
voidable  only,  and  the  sale  therefore  valid.     Id. 

If  the  execution  calls  for  the  amount  of  the  judg- 
ment in  the  court  below,  and  for  the  costs  of  an  appeal 
also,  it  is  not,  for  that  reason,  irregular.     Id. 

A  sale  made  under  a  valid,  though  erroneous  judg- 
ment, which  has  not  been  reversed  or  set  aside,  is 
valid.      (Moore  v.  Martin,  38  Cal.  428.) 

One  who  takes  an  assignment  of  an  erroneous 
judgment,  and  procures  an  execution  to  be  issued  on 
it,  and  becomes  a  purchaser  of  land  sold  under  the 
execution,  is  not  entitled  to  protection  as  a  bona  fide 
purchaser,  and  is  liable  in  an  action  for  damages 
caused  by  the  sale.  (Reynolds  v.  Hosmer,  45  Cal. 
616.) 

§  145.  Judgment  Void  as  to  Defendants  not 
Served  with  Summons. — If  several  persons  are  the 
owners  of  a  tract  of  mining  claims  as  tenants  in  com- 
mon, and  are  known  by  a  company  name,  and  an 
action  is  commenced  against  all  of  them  as  individuals 
composing  the  company,  on  a  money  demand,  and  a 
judgment  is  rendered  against  all,  as  the  persons  com- 
posing the  company,  and  the  claims  are  sold  by  virtue 
of  an  execution  issued  on  the  judgment,  and  a  deed 
executed  to  the  purchaser,  and  if  one  or  more  of  the 
defendants  were  not  served  with  process,  and  did  not 
appear  in  the  action  :  Held,  in  Wiseman  v.  McNulty, 
25  Cal.  231,  that  the  purchaser  does  not  acquire  any 
title  as  against  the  persons  not  served  with  process, 
and  who  did  not  appear. 

§  146.     Writ  cannot  be  Received  on  Sunday. 


§147  LEVY  ON  PERSONAL  PROPERTY.  I  54 

A  writ  of  attachment  or  execution  placed  in  the 
sheriff's  hands  on  Sunday,  cannot  be  officially  received 
by  him  on  that  day.  It  can  only  be  considered  officially 
in  his  hands  when  Sunday  has  expired.  (Whitney  v. 
Butterfield,  13  Cal.  335.) 

§  147.  Justices'  Court  Executions. — Execution 
for  the  enforcement  of  a  judgment  of  a  Justice's  Court 
may  be  issued  at  any  time  within  five  years  from  the 
entry  of  judgment.  It  must  be  directed  to  the  sheriff 
or  to  a  constable  of  the  county,  and  must  be  subscribed 
by  the  justice  and  bear  date  the  day  of  its  delivery  to 
the  officer.  At  the  request  of  the  judgment  creditor, 
the  writ  may  be  renewed  before  the  expiration  of  the 
time  fixed  for  its  return,  by  the  word  "renewed" 
written  thereon,  with  the  date  thereof,  and  subscribed 
by  the  justice.  Such  renewal  has  the  effect  of  an 
original  issue,  and  may  be  repeated  as  often  as  neces- 
sary.    (§§  901-903,  C.  C.  P.) 

A  justice  of  the  peace  may  adjudge  a  party  guilty 
of  contempt,  who,  on  proceedings  supplementary  to 
execution,  refuses  to  obey  an  order  directing  him  to 
deliver  to  an  officer  property  which  he  has,  liable  to 
execution,  and  may  direct  him  to  be  imprisoned  until 
he  complies  with  the  order.  In  such  cases  the  juris- 
diction of  the  justice  is  not  limited  to  a  fine  of  $100 
and  one  day's  imprisonment,  for  §1219  of  the  Code  of 
Civil  Procedure  applies  to  justices'  Courts. 

The  filing  and  docketing  of  a  transcript  of  a  judg- 
ment rendered  by  a  justice  of  the  peace  in  the  office 
of  the  clerk  of  the  county  does  not  empower  the  clerk 
of  the  court  in  which  it  is  filed  and  docketed  to  issue 
an  execution  on  the  same  after  five  years  have  elapsed 
from  the  date  of  its  rendition. 


155  LEVY  ON  PERSONAL  PROPERTY.         §  I  48 

Under  §  902  of  the  Code  of  Civil  Procedure  a  con- 
stable may  serve  an  execution  out  of  his   township. 

Real  estate  of  a  judgment  debtor,  situated  in  the 
county  where  the  judgment  before  a  justice  of  the 
peace  was  rendered,  may  be  sold  on  execudon  upon 
the  judgment,  whether  a  transcript  of  the  judgment 
be  filed  in  the  office  of  the  recorder  of  such  county  or 
not.  (Campbell  z>.  Wickware,  19  Cal.  145.)  No  filing 
of  such  transcript  with  the  recorder  is  necessary,  ex- 
cept as    to    property  situated    in    a  different    county. 

With  reference  to  property  in  the  same  county,  the 
provisions  for  the  enforcement  of  an  execution  upon 
a  judgment  in  a  Jusdce's  Court  are  the  same  as  those 
reladng  to  Superior  Courts. 

Where  plaindff  seeks  to  enjoin  a  sale  of  personal 
property,  under  an  execudon  issued  upon  a  judgment 
recovered  against  him  in  a  Jusdce's  Court,  on  the 
ground  that  the  summons  was  never  served  on  him, 
and  therefore  that  the  justice  never  acquired  juris- 
dicdon  of  his  person :  Held,  that  plaindff' s  remedy  is 
by  motion  in  the  Justice's  Court  to  set  aside  the 
execution.      (Comstock  v.  Clemens,  19  Cal.  77.) 

Where  property  is  levied  upon  by  a  constable  or 
sheriff,  by  virtue  of  an  attachment  or  execution,  as  the 
property  of  the  defendant  in  the  suit,  and  is  claimed 
by  a  third  party,  and  a  jury  is  called  to  try  the  right 
of  property  under  the  claim,  and  the  verdict  of  the 
jury  is  against  the  claimant,  this  verdict  is  no  protection 
to  the  officer  in  suit  brought  against  him  by  the  claim- 
ant, nor  is  it  admissible  in  evidence  as  a  defense. 
(Sheldon  v.  Loomis,  28  Cal.  122.) 

§  148.  Hov^  to  Determine  what  is  Exempt 
from  Execution. — Between  the  desire  of  the  plaintiff 


§148  LEW  ON  PERSONAL  PROPERTY.  I  56 

to  secure  his  debt,  and  the  defendant  to  hold  on  to  as 
much  of  his  property  as  he  can,  the  officer  often  finds 
himself  perplexed  as  to  how  he  can  faithfully  discharge 
his  duty  and  do  justice  to  both  contestants.  He  should 
exercise  the  same  sound  discretion,  as  well  as  dilitrence, 
in  securing  property  under  the  writ,  as  though  he 
were  in  pursuit  of  a  claim  of  his  own. 

The  exemption  law,  as  a  rule,  is  liberally  construed 
by  the  courts,  as  being  remedial,  beneficial,  and  humane 
in  its  character.  §  690,  Code  Civil  Procedure,  declares 
what  personal  property  shall  be  exempt  from  execution. 
In  specifying  the  different  kinds  of  property,  it  does 
not  in  every  instance  state  the  quantity  that  shall  be 
exempt,  and,  hence,  officers  sometimes  find  themselves 
in  a  dilemma  as  to  the  limit  to  which  they  are  bound 
to  go.  The  law  allows  the  judgment  debtor  to  retain 
"necessary  household,  table,  and  kitchen  furniture." 
When  certain  household  furniture  was  claimed  as 
exempt  from  execution  (Haswell  z'.  Parsons,  15  Cal. 
266),  the  fact  that  the  number  of  beds  claimed — six  in 
all — was  greater  than  was  required  for  the  immediate 
and  constant  use  of  the  family,  was  held  to  be  no 
objection.  Plaintiff  was  a  farmer,  householder,  and 
head  of  a  family,  having  a  wife  and  three  children 
dwellinof  with  him.  The  court  held  that  while  it 
was  possible  that  a  less  number  of  beds  would  have 
accomodated  the  plaintiff  and  his  wife  and  children, 
yet  it  would  be  a  very  narrow  construction  of  the 
statute  to  limit  the  exemption  to  the  number  required 
for  immediate  and  constant  use. 

By  the  first  and  second  subdivisions  of  the  690th 
section  of  the  Code  of  Civil  Procedure,  there  is  ex- 
empted certain  household  furniture,  wearing  apparel, 
and    provisions  for  three  months  for  the  use  of  the 


157  ^^EVY  ON  PERSONAL  PROPERTY.         §  I  48 

family.  This  exemption  is  for  the  benefit  of  all  classes 
of  judgment  debtors,  whatsoever  may  be  their  vo- 
cations ;  because  these  articles  are  essential  to  all 
families. 

By  reference  to  the  second  paragraph  of  subdivision 
13  of  §  690,  it  will  be  seen  that  household  furniture 
and  any  other  species  of  property  mentioned  in  that 
section,  may  be  levied  upon  under  execution  (and 
attachment)  issued  for  its  price  or  purchase  money 
thereof 

The  next  succeeding  four  subdivisions  were  in- 
tended to  exempt  such  articles  as  were  used  by  the 
judgment  debtor  in  earning  a  support  for  himself  and 
family  in  his  particular  vocation.  Hence,  the  third 
subdivision  exempts  the  farming  implements  of  a 
farmer,  and  two  oxen,  or  two  horses,  or  two  mules, 
and  their  harness,  one  cart  or  wagon,  and  food  for 
such  oxen,  horses,  or  mules,  for  one  month ;  and  all. 
seed,  grain,  or  vegetables  actually  provided,  reserved, 
or  on  hand  for  the  purpose  of  planting  or  sowing  at 
any  time  within  the  ensuing  six  months,  not  exceeding 
in  value  the  sum  of  $200,  etc.  This  exemption  is  to 
enable  the  judgment  debtor  to  earn  a  support  by 
farming,  and  secures  to  him  the  means  appropriate  to 
that  end. 

The  exemption  of  property  liable  to  seizure  and 
sale  by  the  third  subdivision  of  §  690  of  the  Code  of 
Civil  Procedure  is  declared,  in  Robert  v.  Adams,  38 
Cal.  2i^i,  to  be  intended  to  apply  only  to  oxen,  horses, 
or  mules,  suitable  and  intended  for  the  ordinary  work 
conducted  on  a  farm. 

The  provisions  of  the  third  subdivision  of  §  690, 
Code  Civil  Procedure,  (with  the  exception  of  that  of 
"one  horse  and  vehicle  belonging  to  any  person  who 


§    148  LEVY  ON  PERSONAL  PROPEJ^TY.  I  58 

is  maimed  or  crippled,  and  the  same  is  necessary  in 
his  business")  relate  exclusively  to  exemptions  in 
favor  of  judgment  debtors  who  are  farmers.  (Robert 
V.  Adams,  38  Cal.  383.) 

When  a  house  is  personal  property,  it  is  personal 
property  capable  of  manual  delivery,  and  must  be 
attached  as  provided  by  the  third  subdivision  of  §  542 
of  the  Code  of  Civil  Procedure. 

If  an  officer  go  upon  a  ranch  or  farm  to  levy  upon 
the  personal  property  of  the  debtor,  and  find  there,  of 
horses  or  other  animals  attachable,  only  the  number 
that  is  specified  in  §  690  as  exempt  from  execution,  he 
will  not  be  justified  in  refraining  from  levying  upon 
them  for  that  reason  alone,  for  it  may  be  that  the 
debtor  may  have  other  property  of  a  similar  kind  else- 
where. If  it  is  in  the  officer's  knowledge  that  the 
debtor  has  no  other  animals  of  that  kind  elsewhere,  a 
levy  upon  those  present,  that  are  by  law  exempt, 
would  be  a  superfluous  proceeding.  But  if  he  has 
been  directed  by  the  plaintiff  or  his  attorney  to  make 
the  levy,  he  should  do  so,  if  they  or  either  of  them 
have  reason  to  believe  the  debtor  is  not  entitled  to  the 
exemption.  He  may  require  an  indemnity  bond  if 
there  be  any  doubt  in  his  mind,  and  will  be  protected 
by  the  bond. 

Where  the  debtor  has  several  horses,  and  two  are 
exempt  from  execution,  he  may  elect  which  shall  be 
exempt;  but  if  he  has  some  not  in  the  jurisdiction  of 
the  officer,  and  so  beyond  the  reach  of  the  execution, 
and  there  is  only  one  within  the  reach  of  the  execution, 
he  cannot  defeat  the  creditor's  levy  on  that  one  by 
electing  to  keep  it.  vSuch  a  course  would  be  using 
the  statute,  which  was  intended  for  beneficent  pur- 
poses, as  a  means  of  evasion  and  fraud. 


159  LEVY  ON  PERSONAL  PROPERTY.         §  I  49 

The  fourth  subdivision  exempts  the  tools  or  imple- 
ments of  a  mechanic  or  artisan,  necessary  to  carry  on 
his  trade;  the  notarial  seal,  records,  and  office  furniture 
of  a  notary  public ;  the  instruments  and  chests  of  a 
surgeon,  physician,  surveyor,  or  dentist,  7iecessary  to 
the  exercise  of  their  profession,  with  their  professional 
libraries  and  necessary  office  furniture,  etc. 

The  fifth  subdivision  exempts  the  cabin  of  a  miner, 
his  sluices,  pipes,  hose,  windlass,  derrick,  cars,  pump, 
tools,  implements,  and  appliances  necessary  for  carry- 
ing on  any  mining  opei^atiojts,  etc. 

And  here  comes  in  the  question  as  to  what  appli- 
ances may  be  exempt  from  execution  as  fixtures 
belonging  to  the  realty,  and  not  removable  as  personal 
property,  and  is  treated  upon  elsewhere  in  this  volume 
under  the  title  of  "fixtures." 

The  sixth  subdivision  exempts  two  horses,  two  oxen, 
or  two  mules,  and  their  harness,  and  one  cart  or 
wagon,  one  dray  or  truck,  one  coupe,  one  hack  or 
carriage  for  one  or  two  horses,  by  the  tise  of  which  they 
"or  other  laborer"  habitually  earns  his  living,  etc. 

Where  two  mules  are  claimed  as  exempt  from 
forced  sale  on  execution,  it  must  be  shown  that  the 
party  claiming  the  mules  habitually  earned  his  living 
by  the  use  of  the  animals  in  question,  or  that  he  is 
one  of  the  persons  mentioned  in  the  statute.  (Calhoun 
V.  Knight,  10  Cal,  394.) 

§  149.  What  is  a  Teamster. — In  the  sense  of 
subdivision  6,  §  690,  Code  Civil  Procedure,  one  is  a 
"teamster"  who  is  encraored  with  his  own  team  or 
teams  in  the  business  of  teaming,  viz.:  in  the  business 
of  hauling  freight  for  others  for  a  consideration,  by 
which  he  habitually  supports  himself  and  family,  if  he 


§§150-152        LEVY  ON  PERSONAL  PROPERTY.  1 6a 

has  one.      While  a  teamster  need  not  drive  his  team 
in  person,  yet  he  must  be  personally  engaged  in  the 
business  of  teaming  habitually,  and  for  the  purpose  of 
making  a  living  by  that  business.       (Brusie  v.  Griffith, 
34  Cal.  302.)      . 

§  150.  What  Not  a  Teamster. — If  a  carpenter 
or  other  mechanic  who  occupies  his  time  in  labor  at 
his  trade,  purchases  a  team  or  teams,  and  also  carries 
on  the  business  of  teaming  by  the  employment  of 
others,  he  does  not  thereby  become  a  "teamster"  in 
the  sense  of  the  statute.  (Brusie  v.  Griffith,  34  Cal. 
302.) 

§  151.  Laborer. — By  "other  laborer,"  as  used  in 
the  sixth  subdivision  of  §  690,  C.  C.  P.,  is  meant  one 
who  labors  by  and  with  the  aid  of  his  team,  and  not  by 
the  aid  of  a  pick  and  shovel,  or  the  implements  of 
other  trade  or  vocation.  (Brusie  v.  Griffith,  34  Cal. 
302.) 

§  152.  Teamster  or  Laborer. — Where  B.,  who 
claimed  two  horses,  etc.,  as  exempt,  was  a  clerk  in  a 
store,  at  a  stated  salary,  and  had  purchased  said 
horses,  etc.,  mainly  to  furnish  employment  for  his  son, 
who  was  seventeen  years  old,  and  by  whom  exclusively 
the  team  was  used  habitually  in  hauling  freights  for 
said  store  and  for  other  parties,  and  in  delivering 
croods  from  said  store  to  customers,  all  of  which  was 
done  for  the  benefit  of  B.  and  his  family :  Held,  that 
B.  was  neither  a  teamster  nor  other  laborer  in  the 
statutory  sense.      (Brusie  v.  Griffith,  34  Cal.  302.) 

In  the  case  of  Dove  v.  Nunan,  62  Cal.  399,  the 
property  in  controversy  consisted  of  two  horses  and  a 


l6l  LEVY  ON  PERSONAL  PROPERTY.         §  152 

wagon,  which  were  claimed  by  the  plaintiff  as  exempt 
from  execution.  The  court  said  :  "The  court  below 
found  that  '  the  plaintiffs  were  and  are  a  firm  doing 
business  as  coal  dealers.  ''''■  '''  '='  That  the  plaintiffs 
used  the  property  sued  for  as  teamsters.  That  they 
hauled  coal  and  other  commodities  for  others,  for  hire 
and  pay,  and  received  money  therefor ;  all  of  which 
was  expended  in  the  support  of  plaintiffs  and  their 
families,  all  of  whom  resided  in  the  same  house  and 
ate  at  the  same  table.  That  as  coal  dealers,  and  for 
the  purpose  of  delivering  coal  at  retail  and  in  small 
quantities,  the  plaintiffs  had  and  owned  a  smaller  cart, 
truck,  or  wagon,  and  one  other  horse.  That  the  only 
use  which  the  plaintiffs  made  of  the  wagon  and  horses 
— the  subject  of  this  suit — for  themselves,  other  than 
as  teamsters  for  pay,  was  in  hauling  coal  and  wood 
from  plaintiffs'  coal-yard,  and  other  coal  and  wood 
yards,  to  the  place  where  the  plaintiffs  retailed  the 
same,  as  above  found  herein.' 

"The  fact  that  the  plaintiffs  used  the  horses  and 
wagon  in  question  as  teamsters  for  hire,  and  that  they 
expended  the  money  thus  received  in  the  support  of 
themselves  and  their  families,  did  not  exempt  the 
property  from  execution.  In  order  to  entitle  a  party 
to  claim  as  exempt  from  execution  two  horses,  etc., 
under  the  sixth  subdivision  of  §  690,  he  must  show 
that  he  is  a  cartman,  drayman,  truckman,  huckster, 
peddler,  teamster,  or  other  laborer,  and  that  he  habit- 
ually earns  his  living  by  the  use  of  such  horses,  etc. 
(Code  of  Civil  Procedure,  §  690 ;  Brusie  v.  Griffith, 
34  Cal.  302.) 

"The  findinofs  in  this  case  do  not  show  that  state  of 
facts. 

"Judgment  and  order  reversed." 
II 


§  I  5  2         LEVY  ON  PERSONAL  PROPERTY.  1 62 

In  the  case  of  McCue  v.  Tunstead,  opinion  filed 
May  19th,  1884,  the  Supreme  Court  say:  "The 
court  found  in  substance  that  the  plaintiff  was  the 
owner  and  in  the  possession  of  a  farm  of  about  one 
hundred  and  fifty  acres  of  land,  which  he  cultivates 
for  raising  grain,  etc.,  and  that  the  horse  which  this 
action  was  brought  to  recover  was  used  as  a  work 
horse  on  said  farm — sometimes  singly  and  sometimes 
doubly.  It  is  also  found  that  the  plaintiff  is  the  pub- 
lisher of  a  weekly  newspaper  and  the  proprietor  of 
patent  medicines,  although  his  main  reliance  for  sup- 
port is  upon  his  farm,  '  and  almost  the  entire  income 
from  that  is  from  the  services  of  said  horse  as  a  stallion 
and  the  agistment  of  mares  for  breeding  to  him.' 

"The  plaintiff  is  the  owner  of  other  horses  pledged 
for  a  debt  owing  by  him,  and  in  the  possession  of  the 
pledgee. 

"In  addition  to  'the  farming  utensils  or  implements 
of  husbandry  of  the  judgment  debtor,'  the  law  ex- 
empts from  execution  hvo  hoi^ses.  (C.  C.  P.  690,  subd. 
3.)  The  findings  establish  beyond  doubt  that  the 
plaintiff  employed  this  horse  in  husbandry.  He  was 
a  farm-horse  in  the  same  sense  that  the  plows,  harrows 
and  wagons  used  on  the  farm  were  utensils  or  imple- 
ments of  husbandry.  Conceding  that  some  of  the 
uses  to  which  the  horse  was  put  were  not  strictly  in 
the  line  of  husbandry,  he  was  nevertheless  one  of  two 
horses  owned  by  the  judgment  debtor,  and  employed 
by  him  in  husbandry.  The  law  does  not  specify  how 
much  or  what  use  shall  be  made  of  '  the  farming 
utensils  or  implements  of  husbandry,'  or  of  the  two 
horses  exempted  from  execution.  They  are  exempt 
because  owned  by  a  judgment  debtor  engaged  in 
husbandry.      And  in  order  to  make  them  exempt,  it  is 


163  LEVY  ON  TERSONAL  PROPERTY.         §  I  53 

not  necessary  that  the  owner  of  them  should  devote 
himself  exclusively  to  husbandry.  Such  is  not  the 
language  of  the  law.  It  does  not  say  the  farming 
utensils,  etc.,  of  a  husbandman  or  farmer  shall  be 
exempt;  but  the  farming  utensils,  etc.,  of  husbandry. 
That  is,  utensils,  etc.,  employed  by  the  judgment 
debtor  in  husbandry  or  farming.  This  is  the  obvious 
meaning  of  the  language,  and  we  do  not  feel  at  liberty 
to  hold  that  when  a  judgment  debtor  shows  that  he  is 
carrying  on  a  farm,  and  has  but  two  horses  which  he 
uses  in  farming,  that  they  are  not  exempt  because  he 
sometimes  uses  them  for  some  other  purposes.  That 
would  necessitate  the  importation  of  something  into 
the  law  which  it  does  not  now  contain. 

"Judgment  reversed  with  directions  to  the  court 
below  to  enter  judgment  in  favor  of  the  plaintiff  on 
the  findings." 

§  153.  Earnings  of  Judgment  Debtor. — Al- 
though the  law  provides  that  "the  earnings  of  the 
judgment  debtor  for  his  personal  services  rendered  at 
any  time  within  thirty  days  next  preceding  the  levy  of 
execution  or  attachment,"  may  be  claimed  as  exempt 
from  execution,  when  such  earnings  are  necessary  for 
the  use  of  his  family,  etc.,  there  is  recorded,  in  59  Cal. 
107,  a  case  wherein  a  county  officer's  monthly  salary 
was  applied  on  an  execution.  It  would  seem,  however, 
that  in  that  case,  the  auditor  and  treasurer  must  have 
been  in  sympathy  with  the  judgment  creditor,  for 
otherwise  the  sheriff  might  easily  have  been  frustrated 
in  making  the  levy.  And,  even  when  the  warrant  for 
the  debtor's  salar)'  came  into  the  sheriff's  hands,  the 
sale  thereof  might  have  been  prevented  if  the  debtor 
had  claimed  his  privilege  of  exemption.       Instead  of 


§§  154'   155       I'EVY  ON  PERSONAL  PROPERTY.  164 

cloinLT  SO,  however,  he  allowed  the  sale  to  0^0  on 
without  protest,  and  received  from  the  sheriff  the 
overplus  of  the  sale.  The  debtor  subsequently  made 
application  for  a  writ  of  mandamus  to  the  county 
treasurer,  to  compel  him  to  issue  another  warrant  for 
the  salary,  but  the  application  was  refused.  Having 
had  one  warrant  drawn  and  delivered  to  his  lawfully 
constituted  agent,  the  sheriff,  and  having  obtained  the 
benefit  of  the  proceeds  of  the  sale,  by  payment  of 
judgments  against  him,  he  had  not  the  right  to  have 
another  warrant  for  the  same  services  drawn  and 
delivered  to  him,  and  obtain  double  payment  from  the 
county.  The  court  held  that  "the  debtor  must  have 
known  all  the  facts  as  to  the  levy,  seizure,  and  sale  of 
the  warrant  by  the  sheriff,  and  his  conduct  was  a 
ratification  of  the  acts  of  the  sheriff,  though  the  war- 
rant could  not  be  levied  on  under  a  writ  of  execution." 
The  above  construction  of  the  exemption  law  secures 
— as  the  legislature  intended  it  should — to  the  several 
classes  mentioned,  provision  for  earning  their  support. 

§  154.  Exemption  a  Personal  Right. — The  ex- 
emption of  property  from  sale  on  execution  is  a 
personal  right  which  the  debtor  may  waive  or  claim  at 
his  election.      (Borland  z'.  O'Neal,  22  Cal.  504.) 

Exemption  is  a  personal  privilege.  (Gavitt  v.  Doub, 
23  Cal.  79.)  Where  the  party  failed  to  demand  it,  he 
thereby  waived  his  privilege.  (Borland  v.  O'Neal,  22 
Cal.  505.) 

§  155.  Debtor  must  Claim  within  a  Reason- 
able Time.  —  An  execution  debtor  who  has  more 
horses  than  the  number  exempt  by  law,  may  elect 
which  he  claims  as  exempt,  but  such  election  must  be 


165  LEVY  ON  PERSONAL  PROPERTY,       §§   156-158 

made  and  the  officer  notified  thereof  either  at  the  time 
of  the  levy  or  within  a  reasonable  time  thereafter,  or 
the  right  to  elect  will  be  deemed  waived.  (Gavitt  v. 
Doiib,  23  Cal.  79.) 

§  156.  Unreasonable  Delay  in  Claiming  Ex- 
emption.— Where  several  horses  owned  by  an  ex- 
ecution debtor  were  levied  upon,  and  no  notice  of 
claim  of  exemption  was  given  to  the  officer  until  the 
day  of  sale,  which  was  four  months  after  the  levy: 
Held,  that  the  right  of  election  had  been  lost  by  the 
unreasonable  delay  in  exercising  it,  and  that  the  officer 
was  justified  in  selling  the  property.  (Borland  v. 
O'Neal,  22  Cal.  505.) 

§  157.  Not  Sufficient  Claim. — The  officer  is 
under  no  obligation  to  hunt  up  the  debtor  in  advance 
of  the  levy,  in  order  to  procure  a  selection  by  him. 
The  debtor  w^aives  his  right  by  failing  to  claim  it ;  and 
a  claim  under  one  execution,  w^hen  no  sale  was  made 
under  it,  is  not  sufficient  when  the  property  is  levied 
upon  and  sold  under  a  subsequent  execution. 

§  158.  What  Constitutes  a  Reasonable  Time. 
The  notice  of  claim  should  be  promptly  given  by  the 
debtor,  in  order  that  the  officer  may  levy  on  other 
property,  in  the  place  of  that  selected,  to  secure  the 
debt,  if  there  is  any.  What  will  constitute  a  reason- 
able time  will,  therefore,  depend  upon  the  particular 
circumstances  of  each  case.  There  may  be  cases 
where  a  notice  of  the  selection  given  at  any  time 
before  the  sale  would  be  sufficient,  as  where  it  appears 
that  no  injury  has  been  caused  by  the  delay. 

In  suit  against  plaintiff  in  execution,  for  the  value 


§§  159.  l6o   LEVY  ON  PERSONAL  PROPERTY,  1 66 

of  household  furniture  sold  thereunder,  as  being  ex- 
empt, defendant  offered  to  show  that  plaintiff  agreed 
to  place  the  property  in  the  hands  of  a  third  person, 
to  be  sold  for  the  benefit  of  defendant,  the  creditor: 
Held,  that  the  evidence  was  not  admissible,  because 
such  agreement  does  not  necessarily  waive  the  ex- 
emption from  forced  sale.  (Haswell  v.  Parsons,  15 
Cal.  267.) 

Where  a  party  was  absent  in  San  Francisco,  at  the 
time  his  furniture  was  sold  on  execution,  on  account 
of  sickness  in  his  family,  it  is  a  sufficient  excuse  for 
not  claiming  the  exemption  at  the  time,  the  defendant, 
plaintiff  in  execution,  being  aware  of  such  claim,  it 
having  been  made  on  a  previous  seizure.  (Haswell 
V.  Parsons,  15  Cal.  266.) 

§  159.  A  Stallion,  not  used  as  a  work-horse  on  a 
farm,  but  kept  for  the  service  of  mares,  is  not  exempt 
from  execution.     (Briggs  v.  McCullough,  36  Cal.  542.) 

§  160.  Grain  on  Homestead  Land. —  The  fact 
that  land  is  homesteaded  does  not  of  itself  exempt 
from  execution  all  the  grain  grown  thereon.  It  would 
be  giving  a  strained  interpretation  to  the  language  of 
the  third  subdivision  of  §  699  of  the  Code  of  Civil 
Procedure,  to  say  it  was  intended,  in  additio7i  to  all 
the  crop  grown  upon  the  homestead,  that  the  debtor 
should  be  secured  seed-grain  to  the  value  of  $200.  It 
is  obvious  it  is  meant  that  only  grain  to  that  amount 
shall  be  exempt.      (Horgan  v.  Amick,  62  Cal.  401.) 

In  the  case  of  Dascey,  cl  al.,  v.  Harris,  an  action  in 
replevin,  the  following  opinion  was  filed  in  the  Supreme 
Court,  June  28th,  1884:  "The  wheat  which  is  the 
subject  of  this  action  was  grown  on  the  homestead  of 


I  67  LEVY  ON  PERSONAL  PROPERTY.         §  l6l 

plaintiffs.  On  the  15th  of  March,  1879,  the  plaintiff, 
John  Dascey,  filed  his  petition  in  insolvency,  and  such 
proceedings  were  had  that  on  the  29th  of  April,  1879, 
he  made  an  assignment  of  all  his  property,  real  and 
personal,  to  the  defendant,  assignee  in  insolvency. 
No  property  was  specifically  described  in  the  assign- 
ment, but  words  of  general  description  only  were 
used.  At  the  time  of  filing  the  petition,  the  premises 
constituting  the  homestead'had  been  sown  with  wheat, 
which  was  then  grovv^ing,  and  continued  to  be  growing 
until  after  the  assignment.  Some  time  in  August, 
1879,  after  the  wheat  so  raised  on  the  premises  had 
ripened,  and  been  harvested,  threshed,  and  sacked  by 
said  John  Dascey,  the  defendant,  as  assignee,  under  an 
order  of  the  County  Court,  seized  the  grain  on  the 
premises,  and  caused  it  to  be  removed  therefrom. 
The  wheat  when  so  taken  was  of  the  value  of  $1267. 
It  does  not  appear  that  evidence  was  given  of  any 
damage  to    plaintiffs   beside   the  value  of  the  wheat. 

"At  the  time  of  the  assignment  the  wheat  in  con- 
troversy had  not  such  an  existence  as  that  it  passed 
to  the  assignee.  At  that  time  the  growing  wheat  was 
a  part  of  the  homestead,  at  least  to  the  extent  that  a 
conveyance  of  the  homestead  would  have  passed  the 
growing  crop. 

"Judgment  reversed  and  cause  remanded,  with 
instructions  to  render  judgment  on  the  findings  in 
favor  of  plaintiffs  for  the  possession  of  the  property 
sued  for  ;  or  in  case  a  delivery  cannot  be  had,  for 
^1267,  with  interest  thereon  from  the  date  of  the 
seizure  by  defendant,  and  for  costs," 

§  161.  Claim  before  Sale. — A  sheriff  who  levies 
upon  and  sells   property  exempt    from   execution    is 


§§  1 62-1 66   LEVY  ON  PERSONAL  PROPERTY.  1 68 

liable  for  the  value  of  such  property,  if  claimed  as  ex- 
empt prior  to  the  sale. 

§  162.  Sheriff  cannot  Sell  when  Stay  is  Or- 
dered.— A  sheriff  who  sells  property  on  an  execution 
issued  by  a  justice  of  the  peace,  after  the  justice  has 
notified  him  that  a  writ  of  certiorari  has  been  issued, 
and  commanded  him  to  stay  all  proceedings  upon  the 
execution,  is  liable  for  the  value  of  the  property. 
(Spencer  v.  Long,  39  Cal.  700.) 

§  163.  Deed  of  Trust. — If  a  deed  of  trust  leaves 
an  interest  in  the  trust  property  in  the  grantor,  such 
interest  may  be  sold  on  an  execution  against  him, 
(Kennedy  v.  Nunan,  52  Cal.  326.) 

§  164.     Mining   Claim  Liable  to  Execution. — 

The  interest  of  a  miner  in  his  mining  claim  is  property, 
and  may  be  taken  and  sold  under  execution.  (McKeon 
V.  Bisbee,  9  Cal.  137.) 

§  165.  Property  in  Custody  of  Law. — Property 
in  the  custody  of  the  law  is  not  liable  to  seizure,  with- 
out an  order  from  the  court  having  charge  thereof. 
(Yuba  Co.  V.  Adams,  7  Cal.  35.) 

§  166.  Money  Deposited  with  Sheriff  to  Re- 
lease Attached  Property. — Where  the  defendant,  in 
an  action,  whose  property  had  been  attached  by  the 
sheriff,  deposited  with  the  sheriff  a  sum  of  money  in 
gold  coin,  in  lieu  of  an  undertaking,  to  procure  a  re- 
lease of  the  property,  and  the  property  was  thereupon 
released,  and  afterwards,  by  agreement  between  the 
parties  to  the  action,  the  money  was  taken  from  the 


169  LEVY  ON  PERSONAL  PROPERTY.         §  1 67 

sheriff  and  loaned  out  pending  the  Htigation,  and  a 
note  drawing  interest  taken  therefor,  payable  to  plaint- 
iff's attorney:  Held,  that  after  plaintiff  recovered 
judgment,  the  persons  who  borrowed  the  money  did 
not  hold  it  in  the  character  of  bailees  of  the  sheriff^,  but 
that  they  were  mere  debtors,  and  the  money  in  their 
hands  a  mere  debt,  to  be  treated  as  such  on  proceed- 
ings supplementary  to  execution.  (Hathaway  v.  Brady, 
26  Cal.  581.)  Under  such  condidons  the  money  ceases 
to  be  in  the  custody  of  the  law. 

§  167.  Personal  Property  Mortgaged. — When 
an  officer  is  directed  to  attach  personal  property  which 
is  subject  to  mortgage,  he  should,  before  proceeding 
to  levy,  or  as  soon  thereafter  as  possible,  ascertain  if 
the  property  has  been  mortgaged.  §  2955  of  the  Civil 
Code  sets  forth  what  personal  property  may  be  mort- 
gaged, as  follows  : 

1.  Locomotives,  engines,  and  other  rolling  stock  of 
a  railroad ; 

2.  Steamboat  machinery,  the  machinery  used  by 
machinists,  foundr^^men  and  mechanics ; 

3.  Steam  engines  and  boilers ; 

4.  Mining  machinery ; 

5.  Printing  presses  and  material ; 

6.  Professional  libraries ; 

7.  Instruments  of  a  surveyor,  physician  or  dendst; 

8.  Upholster)^  and  furniture  used  in  hotels,  lodging 
or  boarding-houses,  when  mortgaged  to  secure  the 
purchase  money  of  the  articles  mortgaged ; 

9.  Growing  crops ; 

10.  Vessels  of  more  than  five  tons  burden; 

11.  Instruments,  negatives,  furniture  and  fixtures  of 
a  photograph  gallery ; 


§  I  6S  LEVY  ON  PERSONAL  PROPERTY.  I  70 

12.  The  machinery,  casks,  pipes,  tubes  and  utensils 
used  in  the  manufacture  of  wine,  fruit  brandy,  and  fruit 
syrup  and  sugar. 

A  mortgage  of  personal  property  is  void  as  against 
creditors  of  the  mortgagor  and  subsequent  purchasers 
and  incumbrancers  of  the  property,  in  good  faith  and 
for  value,  unless : 

1.  It  is  accompanied  by  the  affidavit  of  all  the  parties 
thereto  that  it  is  made  in  good  faith  and  without  any 
design  to  hinder,  delay,  or  defraud  creditors ; 

2.  It  is  acknowledged  or  proved,  certified  and  re- 
corded in  like  manner  as  grants  of  real  property. 

Personal  property  mortgaged  may  be  taken  under 
attachment  or  execution  issued  at  the  suit  of  a  creditor 
of  the  mortgagor ;  but,  under  §  2969  of  the  Civil  Code, 
before  the  property  is  so  taken,  the  officer  must  pay 
or  tender  to  the  mortgagee  the  amount  of  the  mort- 
gage debt  and  interest,  or  must  deposit  the  amount 
thereof  with  the  county  clerk  or  treasurer,  payable  to 
the  order  of  the  mortgagee. 

When  the  property  thus  taken  is  sold  under  process, 
the  officer  must  apply  the  proceeds  of  the  sale  as  fol- 
lows :  I  St.  To  the  repayment  of  the  sum  paid  to  the 
mortgagee,  with  interest  from  the  date  of  such  pay- 
ment; and,  2nd.  The  balance,  if  any,  in  like  manner 
as  the  proceeds  of  sales  under  execution  are  applied  in 
other  cases. 

§  168.  Attachment  of  Growing  Crops. — A  chat- 
tel mortgage  upon  a  growing  crop,  as  against  an  at- 
taching creditor,  continues  to  be  a  lien  upon  the  crop, 
in  the  possession  of  the  mortgagor,  after  severance  and 
removal  from  the  land,      (Rider  27.  Edgar,  54  Cal.  127.) 

An    officer  cannot   attach  a  growing  crop,  or  any 


lyi  LEVY  ON  PERSONAL  PROPERTY.        §  I  68 

Other  personal  property,  upon  which  there  is  a  chattel 
mortgage,   without   satisfying    the    mortgage.      If  he 
seizes  such  property  without  paying  or  tendering  the 
amount   due  on    the  mortgage,    the    mortgagee    may 
brino-  an  action  arainst  him ;  in  such  case,  it  was  held 
in  Wood  V.  Franks,  56  Cal.  217,  the  detriment  prox- 
imately caused  by  the  seizure  is  not  the  value  of  the 
property,  but  the  amount  of  the  mortgage  debt ;  and 
this  detriment,  the  officer,  in  seizing  the  property,  as- 
sumes to  make  good.     In    the    case   here    cited,  one 
Wood  was  the  holder  of  a  chattel  mortgage  of  growing 
crops,  made  by  one  Heron  to  secure  the  payment  of  a 
promissory  note  for  $1,487.25,   which   mortgage  was 
recorded.     The  defendant,  Franks,  was  sheriff,  and  as 
such,  there  was   placed   in  his  hands  a  writ  of  attach- 
ment against  the    property   of   Heron  at  the  suit  of 
another  person.     As  such  sheriff,  the  defendant,  with- 
out paying,   tendering   or  depositing   the  amount    of 
Wood's  debt,  seized  the  property  mortgaged  by  virtue 
of  the  writ  of  attachment.     Wood  demanded  payment 
of  his  debt,  and  payment  was  refused  by  the  sheriff 
Plaintiff  thereupon  brought  his  action  to  recover  the 
amount  due  him  on  the  note  and  mortgage  for  princi- 
pal and   interest.     Defendant   demurred  to  the  com- 
plaint, on  the  ground  that  it  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action.     The  demurrer  v/as 
sustained,  and  plaintiff  declining  to  amend,  judgment 
went  for  defendant.     Plaintiff  appealed.     Besides  the 
above  facts,  the  opinion  of  the  court  contains  the  fol- 
lowing : 

"The  statutes  of  this  State  applicable  to  this  contro- 
versy, are  found  in  the  Civil  Code,  viz. : 

"§1427.     An  obligation  is  a  legal  duty,  by  which  a 
person  is  bound  to  do  or  not  to  do  a  certain  thing. 


§  I  68         LEVY  ON  PERSONAL  PROPERTY.  I  72 

"§  1428.  An  obligation  arises  either  from  (i)  the 
contract  of  the  parties  or  (2)  the  operation  of  law.  An 
obligation  arising  from  operation  of  law  may  be  en- 
forced in  the  manner  provided  by  law,  or  by  a  civil 
action  or  proceeding. 

"  §  2968.  Personal  property  mortgaged  may  be  taken 
under  attachment,  or  execution  issued  at  the  suit  of  a 
creditor  of  the  mortgagor. 

"§  2969.  Before  the  property  is  so  taken,  the  officer 
must  pay  or  tender  to  the  mortgagee  the  amount  of  the 
mortgage  debt  and  interest,  or  must  deposit  the  amount 
thereof  with  the  county  clerk  or  treasurer,  payable  to 
the  order  of  the  mortgagee. 

"  §  3333-  For  the  breach  of  an  obligation  not  arising 
from  contract,  the  measure  of  damages,  except  where 
otherwise  provided  by  this  code,  is  the  amount  which 
will  compensate  for  all  the  detriment  proximately 
caused  thereby,  whether  it  could  have  been  anticipated 
or  not. 

"Thus  it  will  be  seen  that  wherever  there  is  an  obliga- 
tion arising  from  operation  of  law,  and  a  breach  of  that 
obligation,  the  party  injured  may,  by  action,  recover 
the  amount  which  will  compensate  him  for  all  the  det- 
riment proximately  caused  by  the  breach.  It  will  also 
be  seen  that  the  law  casts  upon  an  officer  the  duty  or 
obligation  of  paying  to  a  mortgagee  the  amount  of  the 
debt  due  the  mortgagee  before  he,  the  officer,  may  take 
the  property.  If  an  officer  seizes  personal  property 
mortgaged,  without  paying,  tendering,  or  depositing 
the  amount  due,  the  detriment  proximately  caused  by 
such  seizure  is  not  the  value  of  the  property  seized, 
but  the  amount  of  the  mortgage  debt. 

"The  officer  is  not  bound  to  make  the  seizure  unless 
the  attaching  creditor  furnish  him  with  the  requisite 


173  LEVY  ON  PERSONAL  PROPERTY.         §  I  69 

funds  to  make  the  payment.  A  failure  to  furnish  the 
funds  would  be  a  good  defense  by  the  officer  in  a  suit 
against  him  by  the  attaching  creditor.  If,  however, 
the  officer,  waiving  his  right  to  be  protected,  seizes  the 
property  without  payment,  tender,  or  deposit,  he  as- 
sumes to  make  good  to  the  mortgagee  the  detriment 
caused  by  the  seizure ;  and  the  mortgagee  is  not  left 
to  his  action  of  trover  or  replevin.  Indeed,  it  might  be 
that  he  would  not  be  in  a  position  to  maintain  either  of 
those  actions." 

§  169.  Other  Chattel  Mortgages. — A  transfer 
of  property  by  chattel  mortgage,  properly  executed 
and  recorded,  passes  the  title  without  delivery.  (Civil 
Code,  2957.)  The  mortgagee  is,  in  law,  in  possession 
of  the  mortgaged  chattels,  and  an  officer  having  an 
attachment  or  execution  against  the  mortgagor  is  not 
authorized  to  levy  upon  them  without  first  paying  the 
mortgage  debt.  (Berion  v.  Nunan,  opinion  filed  June 
23,  1883.)  A  transfer  of  property  by  chattel  mortgage, 
executed  with  the  formalities  of  law  and  recorded, 
passes  the  title,  although  conditional  and  defeasible, 
whether  the  property  be  or  be  not  delivered.  The 
rights  of  the  parties  to  the  mortgage  are  fixed  by  the 
code ;  they  are  purely  statutory  rights,  and  as  the  code 
declares  that  such  a  mortgage  is  not  void  as  to  credit- 
ors or  subsequent  purchasers,  for  want  of  an  actual 
and  continued  change  of  possession,  the  title  of  the 
mortgagee  is  not  affected  for  want  of  it.  (Heyland  v. 
Badger,  35  Cal.  404.)  The  object  to  be  attained  by 
requiring  the  recording  of  mortgages  of  personal 
property  is  the  same  as  that  providing  for  the  registration 
of  mortgages  of  real  estate.  The  same  general  princi- 
ples are  alike  applicable  in  each  case.     The  design  Is 


§  I  70        LEVY  OX  PERSONAL  PROPERTY.  I  74 

to  give  notice  to  the  public  of  all  existing  incumbrances 
upon  real  or  personal  estate  by  mortgage.  The  re- 
cording of  the  mortgage  is  therefore  made  by  the  code 
the  equivalent  of  an  immediate  delivery  and  continued 
change  of  possession,  and  creditors  and  subsequent 
purchasers  or  incumbrancers  are  bound  by  the  notice 
which  it  imparts.  By  and  under  it,  the  mortgagee  is, 
in  law,  in  possession  of  the  chattels,  and  an  officer  hav- 
ing an  attachment  or  execution  against  the  mortgagor, 
is  not  authorized  to  levy  upon  them  without  first  paying 
the  mortgage  debt. 

Where,  on  the  trial  of  an  action  for  the  replevin  of 
goods  from  a  defendant  who,  in  answer,  admitted  the 
taking,  but  justified  under  legal  process  against  a  third 
party,  held  and  served  by  him  as  sheriff,  it  was  proved 
by  plaintiff  that  he  held  an  unsatisfied  chattel  mortgage 
of  the  goods,  duly  executed  by  said  third  party,  for  their 
purchase-price,  of  which  defendant  had  notice:  Held, 
that  upon  this  state  of  facts,  and  in  absence  of  any  evi- 
dence tending  to  justify  the  taking  of  the  goods  by 
defendant,  plaintiff  was  entided  to  judgment  for  their 
recovery.      (Stringer  v.  Davis,  35  Cal.  25.) 

§  170.  How  Growing  Crops  are  Attached. — 
An  unripe  growing  crop  is  personal  property  not 
capable  of  manual  delivery,  and  an  attachment  may 
be  levied  upon  it  as  such.  In  the  case  of  Raventas 
V.  Green,  Sheriff  of  San  Mateo  county,  57  Cal.  254, 
it  is  decided  that  an  attachment  upon  such  property 
in  the  possession  of  the  defendant  is  sufficiently  levied 
by  serving  upon  him  copies  of  the  writ  and  statutory 
notice;  and  if  the  sheriff  does  nothing  further  undl 
the  crop  is  ripe,  when  he  gathers  it,  there  is  no  aban- 
donment of  the  attachment.     There  is  no  doubt  that 


175  LEVY  ON  PERSONAL  PROPERTY.         §  I/O 

an    unripe   growing    crop    of  grain    is    property.     It 
is    property   subject    to    attachment    (Code    of    Civil 
Procedure,    §  541),   and   is    personal   property    (Civil 
Code,   §  2955;    Davis   v.    McFarlane,    ^j   Cal.   638). 
And  it  is   personal    property  not  capable  of  manual 
delivery   (Davis  v.  McFarlane,   and  authorities   there 
cited).     Being  personal  property  not  capable  of  manual 
delivery,  and  being  subject  to  attachment,  how  is  it  to 
be  attached?     In  the  third  subdivision  of  section  542 
of  the  Code   of  Civil  Procedure,   it  is  provided  that 
"personal  property  capable  of  manual   delivery  must 
be  attached  by  taking  it  into  custody;"    and  in  the 
fifth  subdivision,  that  "debts  and   credits,   and  other 
personal  property  not  capable  of  7nanual  delivery,  must 
be  attached  by  leaving  with   the  person    owing  such 
debts,  or  having  in  his  possession  or  under  his  control 
such  credits  and  other  personal  property,  or  with  his 
agent,  a  copy  of  the  writ  and  a  notice  that  the  debts 
owing  by  him   to   the   defendant,   or  the   credits  and 
other  personal  property  in   his  possession   or  under 
his   control  belonging  to  the  defendant,  are  attached 
in  pursuance  of  such  writ."      "The    purpose    of  the 
statute  was,"  say  the  court,  "as  its  language  indicates, 
to   declare  the  manner  in  which  property  subject  to 
attachment  should  be  attached;   and  with  respect  to 
personal  property,  provides  that  such  property,  w^hen 
capable  of  manual  delivery,  must  be  attached  by  the 
officer  taking  it  into  his  custody ;  but  that  where  not 
capable    of  manual    delivery,    must    be    attached    by 
leaving  with  the  person   having  it  in  his   possession 
or  under  his  control,  or  with  his  agent,  a  copy  of  the 
writ  and  a  notice  that  it  is  attached  in  pursuance  of 
such  writ.     Personal  property  not  capable  of  manual 
delivery,   which  is  in  the  hands  of  the  defendant  to 


§§  I  7 1 ,  172    LEVY  ON  PERSONAL  PROPERTY.  I  76 

the  attachment  suit,  is  as  much  Hable  to  attachment  as 
if  in  the  hands  of  a  third  person." 

Although  the  manner  in  which  growing  crops  are 
to  be  levied  upon  is  thus  plainly  pointed  out — viz.: 
by  garnishment — yet  it  would  seem,  (from  the  nature 
of  the  property,  its  exposed  condition,  and  the  fact 
that  it  may  be  subject  to  injury  or  destruction  by 
maliciously  inclined  persons  where  it  is  protected 
merely  by  the  service  of  a  writ),  not  only  proper 
but  advisable  on  the  part  of  the  officer  and  plaintiff, 
when  deemed  prudent  to  do  so,  to  place  a  keeper  in 
charge  of  the  property.  As,  under  a  ruling  of  the 
Supreme  Court,  noted  elsewhere  in  this  volume,  the 
plaintiff's  attorney  is  not  authorized  to  direct  the 
sheriff  to  incur  such  an  expense,  the  direction  should 
be  given  by  the  plaintiff  or  an  agent  lawfully  authorized 
to  act  in  such  matters  for  him. 

§  171.  Property  held  as  Security  not  Subject 
to  Execution. — A.  being  indebted  to  B.,  delivered 
to  him  a  quantity  of  lumber  as  security  for  payment 
of  the  debt,  with  the  understanding  that  B.  should 
proceed  and  sell  the  lumber,  and  pay  his  debt  out  of 
the  proceeds.  The  lumber  was  afterwards  levied  upon 
by  the  defendants  under  an  execution  in  their  favor, 
against  A.,  as  his  property:  Held,  that  the  lumber 
was  not  subject  to  seizure  under  an  execution  against 
A.,  without  payment,  in  the  first  place,  of  his  indebt- 
edness to  B.  (Swanston  &  Taylor  v.  Sublette  et  al., 
I  Cal.  124.) 

§  172.  Sheriff's  Sale  of  Road.  The  levy  upon 
and  sale  of  a  road,  by  virtue  of  an  execution,  gives 
to  the   purchaser  no   right  or  tide  to  the  same,   for, 


177  LEVY  ON  PERSONAL  I'ROPERTY.       §§   I  73-176 

being  the  property  of  the  pubHc,  the  defendant  in  the 
execution  has  no  interest  therein  which  can  be  con- 
veyed by  the  officer.  (Wood  v.  Truckee  Turnpike 
Co.,  23  Cal.  475.) 

§  I  jT,.  Patent  Right  Attachable. — A  patent  right 
to  an  invention  is  hable  to  execution.  So  decided  in 
Pacific  Bank  v.  Robinson,  57  Cal.  520,  and,  further, 
that  proceedings  supplementary  to  execution  are  in- 
tended to  take  the  place  of  a  creditor's  bill,  and  in  such 
proceedings  it  is  proper  to  order  the  execution  debtor 
to  make  an  assignment  to  a  receiver  of  his  patent  right 
to  an  invention. 

§  174.  Property  of  Inhabitants  not  Liable  for 
County  Debts. — The  private  property  of  an  inhabitant 
of  a  county  is  not  liable  to  seizure  and  sale  on  execu- 
tion for  the  satisfaction  of  a  judgment  recovered  against 
the  county.     (Emeric  v.  Oilman,  10  Cal.  404.) 

§  175.  Interest  of  Purchaser  at  Judicial  Sale 
Subject  to  Levy. — "After  the  expiration  of  the  time 
of  redemption,  and  before  execution  of  the  sheriff's 
deed,  the  purchaser  has  an  estate  which  is  subject  to 
be  seized  and  sold.  Upon  the  same  principle,  we  can 
perceive  no  good  reason  why  the  interest  of  the  pur- 
chaser may  not  also  be  seized  and  sold  before  the  expira- 
tion of  the  time  for  redemption."  (Page  v.  Rogers,  31 
Cal.  305.) 

§  176.     Fixtures. — Upon  few  subjects  have  there 
been  more  numerous  or  more  diverse  decisions  than 
upon  the  question  of  fixtures.     Though  no  great  diffi- 
culty appears  at  first  sight  in  the  definition  itself,  yet 
12 


§176  LEVY  ON  PERSONAL  PROPERTY,  I  78 

the  application  to  particular  facts  has  vexed  the  courts 
and  o-iven  rise  to  an  endless  conflict  of  decisions,  Kent 
defines  a  fixture  to  be  "an  article  of  a  personal  nature 
afiixed  to  the  freehold."  It  has  been  held  that  by  the 
expression  "annexed  to  the  freehold,"  is  meant,  fast- 
ened to  or  connected  with  it;  mere  juxtaposition,  or 
the  laying  of  an  object,  however  heavy,  on  the  freehold, 
does  not  amount  to  annexation.  Where  a  tenant  had 
erected  a  barn  on  pattens  and  blocks  of  timbers  lying 
on  the  ground,  but  not  fixed  in  or  to  the  ground,  it  was 
held  he  might  take  them  away  at  the  end  of  his  term. 
The  author  of  Smith's  Leading  Cases  says:  "The 
o-eneral  rule  governing  this  subject  is,  that  the  tenant, 
if  he  have  annexed  anything  to  the  freehold  during  his 
term,  cannot  again  remove  it  without  the  consent  of 
his  landlord." 

Again  :  "  The  general  rule  appears  to  be,  that  where 
the  instrument  or  utensil  is  an  accessory  to  anything 
of  a  personal  nature,  as  to  the  carrying  on  a  trade,  it 
is  considered  a  chattel  ;  but  where  it  is  a  necessary 
accessory  to  the  enjoyment  of  the  inheritance,  it  is  to 
be  considered  as  a  part  of  the  inheritance." 

Things  erected  for  the  personal  convenience  of  the 
tenant,  which  are  personal  in  their  nature,  as  a  cider  mill 
to  be  used  during  tenancy,  are  held  not  to  be  fixtures. 

As  between  the  landlord,  who  is  the  owner  of  the 
freehold,  and  the  tenant,  the  rule  is,  that,  during  his 
term,  the  tenant  may  remove  fixtures  erected  or  placed 
by  himself.  But  if  he  suffers  them  to  remain  fixed 
after  his  tenancy  expires,  and  he  quits  the  possession 
of  the  land,  he  cannot  enter  to  remove  them. 

A  fixture  is  an  article  of  a  personal  nature  annexed 
to  the  freehold,  and  may  exist  on  public  land.  (Merritt 
V.  Judd,   14  Cal.  60.) 


179  LEVY  ON  PERSONAL  PROPERTY.        §  I  76 

A  Steam  eneine  and  boiler,  fastened  to  a  frame  of 
timber,  bedded  in  the  ground  of  a  quartz  ledge  sufficient 
to  make  it  level,  with  a  roof  or  shed  to  protect  the 
machinery,  and  used  for  the  purpose  of  working  the 
led"-e,  are  so  annexed  to  the  freehold  as  to  become  a 
fixture.     Id. 

Such  machinery,  when  applied  to  quartz  leads,  is  a 
trade  fixtiwe,  removable  by  the  tenant,  if  otherwise 
entitled  to  remove  it.     Id. 

But  this  removal  can  only  be  during  the  tenancy, 
and  during  such  further  period  of  possession  by  the 
tenant,  as  he  holds  the  premises  render  a  right  to  still 
consider  himself  a  tejiant,  and  not  during  the  time  he 
may  actually  hold  possession  after  his  lease  has 
expired.     Id. 

This  right  of  removal  by  the  tenant  may  be  regu- 
lated by  agreement  between  the  parties,  and,  possibly, 
by  implication,  from  the  custom  of  a  particular  district. 
Id. 

Such  machinery,  so  fixed,  is  included  by  the  phrase 
in  the  lease,  "improvements  that  may  be  put  up  on 
the  eround  for  working  the  lead."  And  where  the 
lease  stipulated  that  the  improvements  shall  go  to  the 
lessor  on  termination  of  the  lease,  if  the  rent  was  not 
paid,  or  if  the  lessee  declined  to  purchase,  as  per  the 
lease  he  might,  the  lessor's  right  to  the  fixtures  is  not 
destroyed  by  the  tenant  contracting,  subsequently,  to 
buy,  and  taking  a  bond  for  tide  on  payment  of  the 
purchase  money,  but  failing   to  fulfill    his  bond.     Id. 

A  renewal  of  a  lease  terminates  the  tenant's  right 
to  remove  fixtures.  So  with  any  other  agreement 
which  terminates  possession  under  a  lease.      Id. 

Although  a  lessor  of  land  cannot,  in  a  o-iven  case, 
claim  the  fixtures,  it  is  otherwise  of  the  mortgagee  at 


§176  LEVY  ON   PERSONAL  PROPERTY.  I  80 

the  lessee.  Here  the  question  is  between  grantor 
and  orantee,  and  the  latter  holds  all  fixtures,  whether 
for  trade  or  manufacture,  agriculture  or  habitation.    Id. 

A  o-eneral  deed  of  mortrao-e,  or  bar<^ain  and  sale, 
passes  the  fixtures  as  part  of  the  freehold.     Id. 

At  common  law,  a  bond  for  title  is  in  effect  a  mort- 
gage. The  legal  title  remains  in  the  vendor,  and  an 
equity  vests  in  the  vendee,  to  have  the  title  on  com- 
pliance with  the  conditions.  The  legal  title,  as  also 
the  equity,  goes  to  the  whole  estate,  and  includes 
fixtures.  The  vendor  can  bring  ejectment  on  breach 
of  condition,  or  foreclose.     Id. 

§  660  of  the  Civil  Code  declares  the  following  things 
to  be  fixtures :  "A  thing  is  deemed  to  be  affixed  to  land 
when  it  is  attached  to  it  by  roots,  as  in  the  case  of 
trees,  vines,  or  shrubs ;  or  imbedded  in  it,  as  in  the 
case  of  walls ;  or  permanently  resting  upon  it,  as  in 
the  case  of  buildings ;  or  permanently  attached  to 
what  is  thus  permanent,  as  by  means  of  cement, 
plaster,  nails,  bolts,  or  screws."  Fixtures  attached  to 
mines  are  declared  by  §  66i  of  the  Penal  Code  to  be: 
sluice  boxes,  flumes,  hose,  pipes,  railway  tracks,  cars, 
blacksmith  shops,  mills,  and  all  other  machinery  or 
tools  used  in  working- or  developing  a  mine.  In  the 
case  of  McKiernan  v.  Hesre,  51  Cal.  594,  it  is  held 
that  an  engine  resting  upon  and  fastened  by  bolts  and 
nuts  to  timbers  which  are  embedded  in  the  soil,  is  a 
part  of  the  realty;  also  a  steam  boiler  secured  by 
trestle-work  imbedded  in  the  soil  and  resting  on  and 
surrounded  by  mason-work  of  stone  and  mortar  built 
on  the  ground. 

In  the  case  of  Fratt  v.  Whittier,  58  Cal.  127,  in  the 
opinion  of  the  court,  a  number  of  authorities  are 
quoted  as   to   the   character  of  fixtures.      The   court 


l8l  LEVY  ON  PERSONAL  PROPERTY.         §  I  76 

said:  "This  is  an  action  to  recover  certain  gas  fixtures, 
consisting  of  chandeliers,  globes,  brackets,  burners, 
pendants,  etc.,  a  kitchen-range  with  boiler  attached,  a 
patent  water-filter,  tanks,  and  window-screens.  The 
property  was  attached  to  a  building  known  as  the 
Orleans  Hotel,  situate  on  a  lot  of  land  frontingf  on 
Second  street,  in  the  city  of  Sacramento.  As  owner 
of  the  hotel,  the  plaintiff,  on  Oct.  15,  1879,  contracted 
in  writing  to  sell  the  same  to  the  defendant,  by  the 
following  description,  viz.: 

"Lot  No.  6,  in  the  square  between  J  and  K  and 
Front  and  Second  streets,  in  the  city  of  Sacramento, 
and  the  appurtenances  and  improvements  thereunto 
belonging.  The  sale  was  made  for  ^28,000,  gold 
coin,  payable  after  an  examination  and  approval  of 
the  title,  upon  receiving  from  the  plaintiff  possession 
of  the  property  and  of  a  deed  of  grant  of  the  same, 
on  or  before  the  ist  of  November,  1879,  reserving  to 
the  plaintiff,  among  other  things,  the  right  within  ten 
days  after  delivery  of  possession,  to  remove  from 
the  upper  rooms  of  the  hotel  his  'furniture,  car- 
pets, and  pictures,  but  none  of  the  permanent 
fixtures  or  appurtenances  to  said  property  shall  be 
removed.'  On  the  25th  of  October  the  defendants, 
having  satisfied  themselves  about  the  plaintiff's  title, 
paid  the  full  amount  of  the  purchase  money  and 
received  from  the  plaintiff  possession  and  a  deed  of 
grant  of  the  property.  The  deed  described  the  prop- 
erty the  same  way  that  it  had  been  described  in  the 
contract  of  sale,  and  it  also  contained  the  recital  that 
the  deed  had  been  made  in  pursuance  of  the  contract 
of  sale  and  subject  to  the  terms,  conditions,  and  reser- 
vations therein  contained.  Within  ten  days  after  the 
delivery  of  possession,  plaintiff  demanded  of  the  de- 


§  176         LEVY  ON  PERSONAL  rROPERTY.  I  82 

fendants  the  privilege  of  removing  the  articles  in  con- 
troversy from  the  hotel,  which  being  refused,  this 
action  was  instituted,  and  the  question  arises  whether 
the  articles  are  personalty,  or  fixtures  which  passed 
as  appurtenances  of  the  realty  by  deed  of  grant. 

"If  the  question  arose  out  of  the  deed  alone,  it 
might  not  be  difficult  of  solution,  for  the  weight  of 
authority  seems  to  be  in  favor  of  the  proposition  that 
they  are  to  be  regarded  as  movable  property,  capable 
of  being  severed  from  the  building ;  yet  the  authori- 
ties upon  the  subject  are  conflicting.  In  McKeage  v. 
Hanover  Fire  Insurance  Company,  8i  N.  Y.  38,  the 
Supreme  Court  of  New  York  held  that  gas-pipes 
which  run  through  the  walls  and  under  the  floors  of 
a  house  are  permanent  parts  of  the  building;  but 
fixtures  attached  to  such  pipes,  where  they  are  simply 
screwed  on  projections  of  the  pipes  from  the  walls, 
which  can  be  detached  by  unscrewing  them,  are  not 
appurtenances,  and  so  do  not  pass  by  deed  or  under 
a  mortp-aee  of  the  premises,  and  the  mere  declaration 
of  the  owner  that  he  intends  that  such  articles  shaU 
go  with  the  house  does  not  make  them  realty. 

"In  Guthrie  v.  Jones,  108  Mass.  198,  it  was  held  that, 
as  between  landlord  and  tenant,  gas-fixtures,  though 
fastened  to  the  walls,  were  not  annexed  to  the  realty 
so  as  to  become  part  of  it.  They  are,  says  the  court, 
in  their  nature,  articles  of  furniture,  and  the  fact  that 
they  were  fastened  to  the  walls  for  safety  or  con- 
venience, does  not  deprive  them  of  their  character  as 
personal  chattels  and  make  them  a  part  of  the  realty. 
"In  Vaughen  v.  Haldeman,  ^^  Pa.  St.  523,  the  court 
says:  'Lamps,  chandeliers,  candlesticks,  candelabra, 
screens,  and  the  various  contrivances  for  lighting 
houses  by  means  of  candles,  oil,  or  other  fluids,  have 


183  LEVY  ON  PERSONAL  PROPERTY.         §  I  76 

never  been  considered  as  fixtures  and  as  forming  a 
part  of  the  freehold.  There  is  no  trace  of  a  con- 
trary doctrine  in  the  Enghsh  decisions,  nor  does  it 
appear  that  the  ordinary  apparatus  for  hghting  has 
ever  been  classed  among  fixtures.'  In  Jarechi  v. 
Philharmonic  Society,  79  Pa.  St.  403,  S.  C.  21  Ameri- 
can Reports,  78,  the  case  of  Vaughen  v.  Haldeman 
was  reviewed  and  approved.  Says  Sharwood,  J.: 
'Houses  are  considered  as  finished  by  the  builders 
when  the  gas-fittings  are  completed.  The  fixtures 
are  put  up  in  more  or  less  expensive  style,  according 
to  the  taste  and  means  of  the  persons  who  mean  to 
occupy  them,  whether  as  tenants  or  owners.  It  the 
tenants  put  them  in,  it  is  not  denied  that,  as  between 
him  and  the  landlord,  they  are  his,  and  he  may  remove 
them,  or  they  may  be  sold  as  personal  property,  on  an 
execution  by  the  sheriff.  No  doubt  the  owner,  if  they 
belong  to  him,  often  sells  them  with  the  house.  They 
add  more  to  the  value  of  the  house  than  they  would 
be  worth  if  removed.  But  if  there  is  no  agreement 
to  sell  the  house  as  it  is — fixtures  and  all — the  pur- 
chaser is  not  entitled  to  them.  We  see,  then,  no 
reason  for  departing  from  the  judgment  in  Vaughen 
V.  Haldeman.'  To  the  same  effect  are  Shaw  v. 
Leuche,  i  Daly,  487;  Montague  v.  Dent,  10  Rich. 
138;  Roger  V.  Crow,  40  Mo.  91  ;  Lawrence  v.  Kemp, 
I  Duer.  363;  Towne  z'.  Fiske,  127  Mass.  125. 

"On  the  other  hand,  it  has  been  held  by  the  Supreme 
Court  of  Kentucky,  in  the  case  of  Johnson  v.  Wiseman, 
4  Mete.  (Ky.)  357,  that  where  a  vendee  of  a  house,  in 
possession,  purchased  and  put  into  it  gas  fixtures, 
chandeliers,  etc.,  which  were  affixed  by  means  of  screws, 
to  iron  pipes  let  into  the  walls  of  the  house  for  the  pur- 
pose of  conducting  gas  to  the  burners,  such  chandeliers, 


§    176  LEVY  ON  rF:RSONAL  PROrERTV.  I  84 

etc.,  became  fixtures  which  passed  by  deed  of  the  realty, 
in  the  absence  of  any  express  provision  to  the  contrary, 
although  they  may  be  removable  without  injury  to  the 
walls  or  the  ceiling  of  the  house,  or  to  the  pipes  to 
which  they  are  attached.  The  same  doctrine  was 
enunciated  in  Smith  i'.  Commonwealth,  14  Bush,  31,  as 
one  about  which  there  was  no  question.  Whatever, 
indeed,  is  accessory  to  a  building,  for  the  more  con- 
venient use  and  improvement  of  the  building,  is  consid- 
ered to  pass  by  a  deed  of  the  premises.  Thus,  articles 
placed  in  a  mill  by  the  owner,  to  carry  out  the  obvious 
purpose  for  which  it  was  erected,  are  generally  part  of 
the  realty,  notwithstanding  the  fact  that  they  could  be 
removed  and  used  elsewhere.  (Parsons  z>.  Copeland,  38 
Maine,  537.)  In  a  building  erected  as  a  factory,  the  steam 
works  relied  on  to  furnish  the  motive  power,  and  the 
works  to  be  driven  by  it,  are  essential  parts  of  the 
factory,  adapted  to  be  used  with  it,  and  would  pass  by 
a  conveyance  of  the  real  estate.  (Winslow  v. 
Merchant's  Ins.  Co.,  4  Mete.  306.)  Apparatus  for  the 
manufacture  of  gas  are  fixtures.  (Hays  v.  Doane,  3 
Stock.  84.)  Gas  burners  are  of  the  same  character. 
They  are  in  no  sense  furniture,  but  are  mere  acces- 
sories to  the  building.  (Keeler  v.  Keeler,  31  N.  J.  Eq. 
191.) 

"What  is  accessory  to  real  estate,  is,  according  to  the 
rule  of  the  common  law,  part  of  it,  and  passes  with  it 
by  alienation.  That  rule  has  been,  in  the  growth  of  the 
law,  greatly  modified  as  between  landlord  and  tenant, 
for  the  encouraofement  of  trade,  manufacture,  aorricul- 
ture,  and  domestic  convenience;  and  courts  recognize 
and  enforce  the  right  of  removal  by  a  tenant,  of  chattels 
annexed  to  the  freehold  for  such  purposes.  But  the 
rule  which  is  applicable  to  persons  in  that  relation  does 


185  LEVY  ON  PERSONAL  PROPERTY.         §  I  76 

not  apply  as  between  heir  and  executor,  vendor  and 
vendee.  As  between  the  latter,  the  rule  of  the  common 
law  Is  still  applicable,  except  so  far  as  It  may  be  modi- 
fied by  statutory  regulations  on  the  subject.  So  that 
chattels  attached  to  the  freehold  by  the  owner,  contrib- 
uting to  its  value  and  enjoyment,  pass  by  the  grant  of 
the  freehold,  If  the  grantor  had  power  to  convey. 
(Tourtellot  v.  Phelps,  4  Gray,  378.)  And  after  convey- 
ance they  cannot  be  severed  by  the  vendor  or  any  one 
else  than  the  owner. 

"As  between  vendor  and  vendee,  therefore,  the  rule 
for  determining  what  Is  a  fixture  Is  always  construed 
strongly  against  the  seller.  Many  things  pass  by  a 
deed  of  a  house,  being  put  there  by  the  owner  and 
seller,  which  a  tenant  who  had  put  them  there  might 
have  removed,  and  they  will  be  regarded  as  fixtures, 
which  pass  to  the  vendee,  although  annexed  and  used 
for  purposes  of  trade,  manufacture,  or  for  ornament  or 
domestic  use.  Thus,  potash  kettles,  appertaining  to  a 
building  for  manufacturing  ashes,  (Miller  v.  Plumb,  6 
Cowen,  665;  S.  C.  16  Am.  Dec.  456);  a  cotton-gin 
fixed  In  Its  place  (Bratton  v.  Claussen,  2  Strob.  478); 
a  steam-engine  to  drive  a  bark  mill  (Oves  v.  Oglesby, 
7  Watts,  106);  kettles  set  In  brick  in  dyeing  and  print 
works  (Dispatch  Line  v.  Bellaney  Man.  Co.,  12  N.  H. 
207);  iron  stoves  fixed  to  the  brick  work  of  chimneys 
(Goddard  v.  Chase,  7  Mass.  432);  wainscot  work,  fixed 
and  dormant  tables,  engines  and  boilers  used  In  a  flour 
mill  and  attached  to  It  (Sands  v.  Pfeiffer,  10  Cal.  259); 
a  steam-engine  and  boiler  fastened  to  a  frame  of  timber 
and  bedded  In  a  quartz  ledge  and  used  for  the  purpose 
of  working  the  ledge  (Merritt  v.  Judd,  14  Cal.  50);  a 
conduit  or  water  pipe  to  conduct  water  to  a  house 
(Philbrick  v.  Ewing,  97   Mass.  134)   hay  poles   In   use 


§  176         LEVY  ON  PERSONAL  PROPERTY.  I  86 

on  a  hop  farm  (Bishop  z'.  Bishop,  ii  N.  Y.  123); 
statues  erected  for  ornament,  though  only  kept  in  place 
by  their  own  weight  (Snedeker  z'.  Warring,  12  N.  Y. 
170).  In  fact,  whatever  the  vendor  has  annexed  to  a 
building  for  the  more  convenient  use  and  improvement 
of  the  premises  passes  by  his  deed.  The  true  rule 
deduced  from  all  the  authorities,  says  the  Supreme 
Court  of  Virginia,  seems  to  be  this,  that,  when  the 
machinery  is  permanent  in  its  character  and  essential 
to  the  purpose  for  which  the  building  is  occupied,  it 
must  be  regarded  as  realty,  and  passes  with  the  building; 
and  that  whatever  is  essential  for  the  purpose  for  which 
the  buildincT  is  used,  will  be  considered  as  a  fixture, 
although  the  connection  between  them  may  be  such 
that  it  may  be  severed  without  physical  or  lasting 
injury  to  either.  (Green  v.  Phillips,  26  Gratt.  752; 
Shelton  v.  Ficklin,  32  /d.  755.) 

"Judged  by  these  rules,  it  would  seem  as  if  there 
was  no  room  for  doubt  as  to  the  character  of  the 
articles  in  controversy.  Taking  into  consideration 
their  nature,  the  circumstances  under  which  they 
were  placed  in  the  building,  the  mode  of  their  con- 
nection with  it,  and  the  relation  which  they  bear  to  its 
use  and  enjoyment,  they  must  be  regarded  as  essen- 
tial for  the  purposes  for  which  the  building  was  used. 
The  plaintiff  himself,  by  his  testimony,  shows  that  the 
globes  were  lettered  'Orleans  Hotel,'  and  that  they, 
with  the  chandeliers,  etc.,  were  necessary  for  furnish- 
ing light  to  the  building ;  that  the  range  rested  on  a 
foundation  of  brick,  and  that  it  and  its  attachments 
were  annexed  to  the  building  by  pipes,  which  con- 
nected them  with  the  tanks  and  filters  on  the  roof  of 
the  building,  and  by  a  waste-pipe  which  ran  through 
the  wall  of  the  building,  and  connected  with  a  sewer 


187  LEVY  ON  PERSONAL  PROPERTY.         §  I  76 

in  the  alley  outside,  and  the  range  and  its  attachments 
were  necessary'  for  cooking ;  that  the  tanks  and  filters 
were  attached  to  the  building  by  a  system  of  pipes 
which  connected  them  with  the  main,  or  pipes  of  the 
City  Water  Company,  and  with  various  parts  of  the 
hotel,  and  were  necessary  to  supply  the  hotel  with 
clear  water ;  that  the  mosquito-transoms  and  window- 
screens  were  fitted  to  the  windows  and  transoms  of 
the  hotel — each  window  and  transom-frame  beinpf 
fitted  to  its  particular  window,  and  shoved  up  and 
down  in  it  on  grooves,  and  all  of  them  were  neces- 
sary to  the  hotel  as  its  windows,  its  blinds  and  shut- 
ters. All  of  the  articles  were,  therefore,  essential  to 
the  use  and  enjoyment  of  the  hotel ;  in  fact,  as  the 
plaintiff  testified,  'it  would  not  have  been  a  hotel 
without  them.'  They  were,  therefore,  fixtures  which 
passed  by  the  deed  of  grant  to  the  defendants,  unless 
they  were  specially  reserved  by  the  deed.  But  the 
deed  reserved  none  of  the  articles.  It  was  made, 
according  to  its  recitals,  in  pursuance  of  the  agree- 
ment of  the  15th  of  October,  and  subject  to  the  terms, 
conditions,  and  reservations  therein  contained  and 
expressed. 

"As  already  stated,  the  agreement  reserved  only  the 
furniture,  pictures,  and  carpets  of  the  upper  rooms  of 
the  building,  and  none  of  the  'permanent  fixtures  or 
appurtenances  to  the  property.'  In  the  absence  from 
the  deed  of  any  special  reservation  of  the  articles,  it 
must  be  presumed  that  the  parties,  by  their  agree- 
ment, considered  them  as  permanent  fixtures  and 
appurtenances  of  the  hotel,  which  were  to  pass  by 
the  deed ;  it  is  a  well  settled  rule  of  law  that  parties 
themselves  may,  by  express  agreement,  fix  upon  chat- 
tels annexed  to  realty  whatever  character  they  may 


§  176        LEVY  ON  PERSONAL  PROPERTY.  I  88 

ha\-e  agreed  upon.  Property  which  the  law  regards 
as  hxtures  may  be  by  them  considered  as  personalty, 
and  that  which  is  considered  in  law  as  personalty  they 
may  regard  as  a  fixture.  Whatever  may  be  their 
agreement,  courts  will  enforce  it.  (Smith  v.  Wag- 
goner, 50  Wise.  155;  Hunt  V.  Bay  State  Iron  Co.  97 
Mass.  279;  Ford  v.  Cobb,  20  N.  Y.  344;  Tifft  v.  Hor- 
ton,  53  id.  2)71 '>  ^^ord  z>.  Williams,  24  N.  Y.  359; 
Smith  v.  Benson,  1  Hill,  176;  Menagh  z',  Whitwell, 
52  N.  Y.  146.) 

"So  the  plaintiff,  when  he  contracted  to  sell  the  hotel 
property  with  its  appurtenances  and  improvements, 
reserving  from  the  sale  only  the  carpets,  furniture, 
and  pictures  of  the  upper  rooms  of  the  building, 
fixed  upon  all  the  chattels  which  he  had  annexed  to 
the  hotel,  and  which  were  necessary  to  its  use  and 
enjoyment,  the  character  of  appurtenances  and  im- 
provements of  the  hotel.  None  of  them  by  any 
possibility  of  construction  could  fall  within  the  reser- 
vation of  'furniture,  carpets,  or  fixtures  in  the  upper 
rooms  of  the  hotel'  The  plaintiff,  therefore,  sold 
the  articles  in  question  as  fixtures  with  the  hotel,  and 
as  such  they  passed  by  his  subsequent  deed  of  the 
premises  to  the  defendants. 

"Personal  property  annexed  to  realty  still  retains  its 
character  as  such,  if  the  parties  so  intended  in  annexing 
it,  unless  it  has  become  so  absorbed  or  merged  into  the 
realty  that  its  identity  as  personal  property  is  lost,  as 
where  it  cannot  be  removed  without  practically  destroy- 
ing it,  or  where  it  is  essential  to  the  support  of  that  to 
which  it  is  attached.      (Hendy  v.  Dinkerhoff,  57  Cal.  3.) 

"A  party  who  has  placed  improvements  and  fixtures 
upon  land  which  he  has  leased  upon  condition  that  he 
should    have    die    right    to    remove    them,   cannot  be 


189  LEVY  ON  PERSONAL  PROPERTY.         §  I  76 

estopped  from  taking  them  away,  even  thougrh  he  may 
have  inadvertently  signed  a  lease  with  no  such  condi- 
tions therein.     In  the  case  of  Isenhoot  v.  Chamberlain, 
opinion  filed  in  our  Supreme  Court  February  ii,  1882, 
plaintiff  and  defendant  entered  into  an  agreement  for 
the  lease  of  land  upon  certain  conditions  named  in  the 
lease,  and  the  further  condition,  that  on  or  before  the 
expiration  of  the  lease,  defendant  should  have  the  right 
to  remove  from  the  land  certain  fixtures  and  improve- 
ments   previously    placed    there    by   him.        During 
negotiations  for  the  lease,  plaintiff  at  all  times  admitted 
that   defendant  was  the    owner  of  the  improvements 
and  fixtures,  and  entided  to  remove  them,  and  that  the 
right  of  removal  should  be  a  condition  of  the  lease. 
The  lease  was  reduced  to  writing  by  the  procurement 
of  the  plaintiff  (lessor),  and  when  read  to  defendant 
(lessee)  he  refused  to  sign  the  same  unless  such  condi- 
tion was  added  to  the  lease.     But,  upon  being  informed 
by  the  plaintiff  that  he  (plaintiff)  knew  the  fixtures  and 
improvements    belonged    to  defendant,  and    that   the 
omission  of  the  conditions  from  the  lease  would  make 
no  difference,  and  that  defendant  should  have  the  rio-ht 
of  removal,  the  defendant  accepted  the  assurance   of 
plaintiff,  and  relying  thereon,  and  believing  in  the  good 
faith  of  plaintiff,  was  induced   to,  and  did,  execute  the 
lease,    omitting    the    condition :      Held,    plaintiff  was 
estopped  from  claiming  the  improvements  and  fixtures, 
and  that  defendant,  having  commenced  to  remove  the 
same  previous  to  the  expiration  of  the  lease,  would  not 
be  restrained  by  injunction ;    and  that  defendant  was 
entitled  to  have  the  lease  reformed. 

"A  tenant  who  puts  up  machinery  for  a  mill,  in  a 
house  leased,  and  fastens  it  by  bolts,  screws,  etc.,  to 
the  house,  has  the  right  to  remove  it ;   but,  as  between 


§  176         LEVY  ON  PERSONAL  PROPERTY.  1 9O 

vendor  and  vendee,  such  machinery  would  be  consid- 
ered as  a  part  of  die  realty.  (McGreary  :'.  Osborne, 
9  Cal.  1 19.) 

"  D.  purchased  a  lot  of  land  at  sheriff's  sale  on  execu- 
tion, and  entered  into  possession  and  erected  certain 
buildings  thereon.  On  the  25th  day  of  May,  1858,  D. 
removed  the  buildings.  On  the  same  day  the  buildings 
were  removed,  the  defendants  in  execution  sold  the 
premises  to  T.,  and  a  day  or  two  after,  T.  redeemed 
the  lot  from  the  sale,  and  then  brought  suit  against  D. 
to  recover  the  value  of  the  buildings :  Held,  that,  as 
there  was  no  evidence  that  the  buildings  were  attached 
to  the  soil,  T.  cannot  recover.  (Tyler  v.  Decker,  10 
Cal.  436.) 

"In  the  absence  of  any  agreement  to  the  contrary,  a 
dwelling-house  and  barn  erected  upon  the  land  of  his 
landlord  by  a  tenant  becomes  a  part  of  the  realty.  A 
lessee,  before  the  expiration  of  his  term,  erected  a  house 
and  barn  on  the  leased  premises.  At  the  expiration 
of  the  term,  a  new  lease  was  taken  of  the  premises, 
without  reserving  the  rights  of  the  lessee  to  the  build- 
ings so  erected :  Held,  in  Marks  v.  Ryan  (filed  January 
31st,  1883),  that  the  buildings  become  fixtures  annexed 
to  the  land,  and  conversion  therefor  could  not  be 
maintained. 

"The  general  rule  of  law  is,  that  whatever  is  once 
annexed  to  the  freehold  becomes  parcel  thereof,  and 
passes  with  the  conveyance  of  the  estate.  Though 
the  rule  has  been  in  modern  times  greatly  relaxed,  as 
between  landlord  and  tenant,  in  relation  to  the  things 
affixed  for  the  purposes  of  trade  and  manufacture,  and 
also  in  relation  to  articles  put  up  for  ornament  or  do- 
mestic use,  it  remains  in  full  force  as  between  vendor 
and  vendee. 


191  LEVY  ON  PERSONAL  PROPERTY.   §§  1 77,  1 78 

"As  a  general  thing,  a  tenant  may  remove  what  he 
has  added,  when  he  can  do  so  without  injury  to  the 
estate,  unless  it  has  become,  by  its  manner  of  addi- 
tion, an  integral  part  of  the  original  premises ;  but  as 
against  a  vendor,  all  fixtures  pass  to  his  vendee,  even 
though  erected  for  the  purposes  of  trade  and  manu- 
facture, unless  specially  reserved  in  the  conveyance. 

"The  engine  and  boilers,  etc.,  used  in  a  flour-mill, 
being  permanently  fastened  to  the  mill,  which  had  its 
foundation  in  the  ground :  Held,  to  be  fixtures  covered 
by  a  mortgage  upon  the  premises,  though  put  up  after 
the  execution  of  the  mortgage,  and  held  to  pass  to  the 
purchaser  of  the  mortgaged  premises  under  a  decree 
of  foreclosure." 

§  177.  When  Fixtures  become  Personal  Prop- 
erty.— By  the  wrongful  severance  from  the  premises, 
the  fixtures  become  personal  property,  for  the  recov- 
ery of  which  an  action  of  replevin  will  lie  by  the  pur- 
chaser after  he  obtains  the  sheriff's  deed.  (Sands  v. 
Pfeiffer,  lo  Cal.  259.) 

§  178.  The  Law  of  Exemptions. — §  690  of  the 
Code  of  Civil  Procedure  exempts  certain  kinds  of 
property  from  levy  and  sale,  as  follows : 

The  following  property  is  exempt  from  execution, 
except  as  herein  otherwise  specially  provided: 

1.  Chairs,  tables,  desks,  and  books,  to  the  value  of 
$200,  belonging  to  the  judgment  debtor; 

2.  Necessary  household,  table  and  kitchen  furniture 
belonging  to  the  judgment  debtor,  including  one  sew- 
ing-machine, stoves,  stove-pipes,  and  furniture,  wearing 
apparel,  beds,  bedding,  and  bedsteads,  hanging  pic- 
tures, oil  paintings,  and  drawings  drawn  or  painted  by 


§178  LEVY  ON   PERSONAL  PROPERTY.  I92 

any  member  of  the  family,  and  family  portraits  and 
their  necessary  frames,  provisions  actually  provided 
for  individual  or  family  use  sufficient  for  three  months, 
and  three  cows  and  their  sucking  calves,  four  hogs 
with  their  sucking  pigs,  and  food  for  such  cows  and 
hoes  for  one  month ; 

3.  The  farming  utensils  or  implements  of  husbandry 
of  the  judgment  debtor ;  also  two  oxen,  or  two  horses, 
or  two  mules  and  their  harness,  one  cart  or  wagon, 
and  food  for  such  oxen,  horses,  or  mules  for  one 
month;  also,  all  seed,  grain,  or  vegetables  actually 
provided,  reserved,  or  on  hand  for  the  purpose  of 
planting  or  sowing  at  any  time  within  the  ensuing  six 
months,  not  exceeding  in  value  the  sum  of  $200,  and 
seventy-five  bee-hives,  and  one  horse  and  vehicle  be- 
longing to  any  person  who  is  maimed  or  crippled,  and 
the  same  is  necessary  in  his  business  ; 

4.  The  tools  or  implements  of  a  mechanic  or  arti- 
san necessary  to  carry  on  his  trade ;  the  notarial  seal, 
records,  and  office  furniture  of  a  notary  public;  the 
instruments  and  chest  of  a  surgeon,  physician,  sur- 
veyor, or  dentist,  necessary  to  the  exercise  of  their 
profession,  with  their  professional  libraries  and  neces- 
sary office  furniture;  the  professional  libraries  of 
attorneys,  judges,  ministers  of  the  gospel,  editors, 
school-teachers,  and  music-teachers,  and  their  neces- 
sary office  furniture;  also,  the  musical  instruments  of 
music-teachers  actually  used  by  them  in  giving  in- 
structions, and  all  the  indexes,  abstracts,  books,  pa- 
pers, maps,  and  office  furniture  of  a  searcher  of 
records,  necessary  to  be  used  in  his  profession ; 

5.  The  cabin  or  dwelling  of  a  miner,  not  exceeding 
in  value  the  sum  of  $500;  also,  his  sluices,  pipes, 
hose,    windlass,    derrick,    cars,    pumps,    tools,    imple- 


193  LEVY  ON  PERSONAL  PROPERTY.         §  I  7^ 

ments,  and  appliances  necessary  for  carrying  on  any 
mining  operations,  not  exceeding  in  value  the  aggre- 
gate sum  of  $500,  and  two  horses,  mules,  or  oxen, 
with  their  harness,  and  food  for  such  horses,  mules, 
or  oxen  for  one  month,  when  necessary  to  be  used  in 
any  whim,  windlass,  derrick,  car,  pump,  or  hoisting- 
gear,  and  also  his  mining  claim  actually  worked  by 
him,  not  exceeding  in  value  the  sum  of  ^looo; 

6.  Two  horses,  two  oxen,  or  two  mules,  and  their 
harness,  and  one  cart  or  wagon,  one  dray  or  truck, 
one  coupe,  one  hack  or  carriage  for  one  or  two 
horses,  by  the  use  of  which  a  cartman,  drayman, 
truckman,  huckster,  peddler,  hackman,  teamster,  or 
other  laborer  habitually  earns  his  living,  and  one 
horse  with  vehicle  and  harness,  or  other  equipments, 
used  by  a  physician,  surgeon,  constable,  or  minister 
of  the  gospel,  in  the  legitimate  practice  of  his  pro- 
fession or  business,  with  food  for  such  oxen,  horses, 
or  mules  for  one  month ; 

7.  Poultry  not  exceeding  in  value  $25  ; 

8.  The  earnings  of  the  judgment  debtor  for  his 
personal  services  rendered  at  any  time  within  thirty 
days  next  preceding  the  levy  of  execution  or  attachment, 
when  it  appears  by  the  debtor's  affidavit,  or  otherwise, 
that  such  earnings  are  necessary  for  the  use  of  his 
family  residing  in  this  State,  supported  in  whole  or  in 
part  by  his  labor  ;  but  where  debts  are  incurred  by  any 
such  person,  or  his  wife  or  family,  for  the  common 
necessaries  of  life,  the  one-half  of  such  earnings  above 
mentioned  are,  nevertheless,  subject  to  execution, 
garnishment,  or  attachment  to  satisfy  debts  so  incurred ; 

9.  The  shares  held  by  a  member  of  a  homestead 
association  duly  incorporated,  not  exceeding  in  value 
$1000,  if  the  person  holding  the  shares  is  not  the  owner 

13 


§178  LEVY  ON  PERSONAL  PROPERTY.  1 94 

of  a  homestead  under  die  laws  of  diis  State.  All  the 
naudcal  instruments  and  wearing  apparel  of  any 
master,  officer,   or  seaman   of  any   steamer  or    other 

vessel ; 

10.  All  moneys,  benefits,  privileges,  or  immunities 
accruing  or  in  any  manner  growing  out  of  any  life  insur- 
ance on  the  life  of  the  debtor,  if  the  annual  premiums 
paid  do  not  exceed  $500 ; 

11.  All  fire  engines,  hooks  and  ladders,  with  the 
carts,  trucks,  and  carriages,  hose,  buckets,  implements, 
and  apparatus  thereunto  appertaining,  and  all  furniture 
and  uniforms  of  any  fire  company  or  department 
organized  under  any  laws  of  this  State ; 

12.  All  arms,  uniforms,  and  accoutrements  required 
by  law  to  be  kept  by  any  person,  and  also  one  gun,  to 
be  selected  by  the  debtor ; 

13.  All  court  houses,  jails,  public  offices  and  build- 
ings, lots,  grounds,  and  personal  property,  the  fixtures, 
furniture,  books,  papers,  and  appurtenances  belonging 
and  appertaining  to  the  jail  and  public  offices  belonging 
to  any  county  or  to  any  city  and  county  of  this  State, 
and  all  cemeteries,  public  squares,  parks  and  places, 
public  buildings,  town  halls,  markets,  buildings  for  the 
use  of  fire  departments  and  military  organizations,  and 
the  lots  and  grounds  thereto  belonging  and  apper- 
taining, owned  or  held  by  any  town  or  incorporated 
city,  or  dedicated  by  such  town  or  city  to  health, 
ornament,  or  public  use,  or  for  the  use  of  any  fire  or 
military  company  organized  under  the  laws  of  this 
State. 

No  ardcle,  however,  or  species  of  property  mendoned 
in  this  section,  is  exempt  from  execudon  issued  upon  a 
judgment  recovered  for  its  price,  or  upon  a  judgment  of 
foreclosure  of  a  mortgage  thereon. 


195  LEVY  ON  PERSONAL  PROPERTY.   §§  I  79,  1 80 

§  179.  Within  what  Time  Execution  may- 
Issue. — The  party  in  whose  favor  judgment  is  given, 
may,  at  any  time  within  five  years  after  the  entry 
thereof,  have  a  writ  of  execution  issued  for  its  enforce- 
ment. This  appHes  to  Superior  and  Justice's  Courts. 
In  all  cases  other  than  for  the  recovery  of  money,  in 
the  Superior  Court,  the  judgment  may  be  enforced  or 
carried  into  execution  after  the  lapse  of  five  years  from 
the  date  of  its  entry,  by  leave  of  the  court,  upon  motion, 
or  by  judgment  for  that  purpose,  founded  upon  supple- 
mental pleadings. 

The  statute  limiting  the  time  for  issuing  execution 
upon  a  judgment  to  five  years  after  its  entry,  applies  to 
judgments  rendered  in  suits  to  foreclose  a  mortgage, 
equally  as  to  mere  personal  judgments.  (Stout  v. 
Macy,  22  Cal.  647.) 

The  judgment  roll  is  only  required  to  be  made  up  by 
the  clerk  after  the  entry  of  the  judgment,  but  execution 
may  lawfully  be  issued  and  enforced  so  soon  as  this 
judgment  is  entered  and  before  the  filing  of  the  judg- 
ment roll.      (Sharp  V.  Lumley,  34  Cal.  612.) 

The  statute  does  not  require  the  docketing  of  the 
judgment  to  precede  either  the  issuing  or  service  of 
the  execution.  The  docket  creates  and  preserves  a 
lien  for  two  years,  but  without  docketing  the  judg- 
ment, execution  may  be  issued  upon  it,  and  real  estate 
levied  upon  and  sold,  and  the  sale  and  conveyance 
will  pass  all  the  interest  held  by  the  judgment  debtor 
at  the  time  of  the  levy.  (Hastings  v.  Cunningham,  39 
Cal.  137.) 

§  180.  Execution  when  Judgment  not  En- 
tered.— An  execution  issued  upon  a  valid  judgment  is 
sufficient  authority  to    the    sheriff  to  make    a  sale  of 


§    I  So  LEW  ON  PERSONAL  PROPERTY.  I  96 

lands.  In  the  case  of  Los  Angeles  Bank  z>.  Ray  nor 
(opinion  filed  July  27,  1882),  judgment  was  given  and 
signed  by  the  judge,  June  27,  1876;  the  judgment  was 
not  entered  in  the  judgment  book  until  March  21, 
1 88 1,  when  it  was  then  endorsed  by  the  clerk  of  the 
court,  entered  as  of  June  26,  1876,  by  stipulation  of 
the  defendant ;  execution  was  issued  June  27,  1876,  and 
the  return  of  the  sheriff  endorsed  thereon,  August  i, 
1876,  showing  that  he  had  sold  the  premises  to  the 
plaintiff;  on  which  sale  a  deed  was  made  by  the  sheriff, 
February  i,  1877.  It  was  not  claimed  that  the  judgment 
o-iven  June  27,  1876,  was  void.  Being  valid,  it  was  en- 
forceable by  execution,  and  the  execution  which  was 
issued  to  enforce  it  was  sufficient  authority  to  the  sheriff 
to  make  the  sale.  It  was  urged  that  the  record  showed 
that  the  judgment  was  not  entered  when  the  execution 
was  issued,  and  the  court  held  that  it  was  not  neces- 
sary that  it  should  have  been ;  that  the  enforcement  of 
a  judgment  does  not  depend  upon  its  entry  or  docket- 
ing ;  that  these  are  merely  ministerial  acts,  the  first  of 
which  is  required  to  be  done  for  putting  in  motion  the 
right  of  appeal  from  the  judgment  itself,  and  of  limiting 
the  time  within  which  the  right  may  be  exercised  (§  681 
C.  C.  P.),  or  in  which  the  judgment  may  be  enforced 
(§  685  Id.) ;  and  the  other,  for  the  purpose  of  creating 
a  lien  by  the  judgment  upon  the  real  property  of  the 
debtor.  (§671  C.  C.  P.)  But  neither  is  necessary  for 
the  issuance  of  an  execution  which  has  been  duly 
rendered.  Without  docketing  or  entry,  execution  may 
be  issued  on  the  judgment,  and  land  levied  upon  and 
sold  (Hastings  :-.  Cunningham,  39  Cal.  144)  ;  and  the 
deed  executed  by  the  sheriff,  in  fulfillment  of  the  sale, 
not  only  proves  the  sale,  but  also  estops  the  defendant 
from  controverting  the  title  acquired  by  it.      (Dodge  v. 


197  LEVY  ON  PERSONAL  PROPERTY.       §§   181-184 

Walley,  22  Cal  224;  McDonald  v.  Badger,  23  Id.  399; 
Cooper  V.  Galorauth,  3  Wash.  C.  C.  550;  Blood  v. 
Light,  2>^  Cal.  619.) 

§  181.     Power  of  Justice  over  his  Judgments. — 

A  justice  of  the  peace  has  power  to  recall  an  execution 
issued  by  him  on  a  void  judgment,  and  stay  further 
proceedings,  even  if  the  judgment  has  been  docketed 
in  the  office  of  the  county  clerk  and  the  execution  has 
been  issued  by  the  clerk.  (Gates  v.  Lane,  49  Cal. 
266.) 

§182.     Enjoining    Justice's    Judgment. — If  a 

judgment  rendered  by  a  justice  of  the  peace  is  void  on 
its  face,  a  suit  in  equity  cannot  be  maintained  to 
restrain  its  enforcement  by  execution,  even  if  the  execu- 
tion is  issued  by  the  county  clerk  on  a  copy  of  the  judg- 
ment docketed  with  him.     Id. 

^ 

§  183.  Judgment  after  Filing  Homestead. — 
A  judgment  obtained  after  the  filing  of  a  declaration 
of  homestead  cannot  be  enforced  against  a  homestead, 
although  an  attachment  may  have  been  levied  upon 
the  premises  before  the  filing  of  the  declaration. 
(Sullivan  v.  Hendrickson,  54  Cal.  258,  affirming 
Harris  v.  McCracken,  Id.  81.) 

§  184.  Void  Judgment  and  Levy. — A  voluntary 
confession  of  a  judgment  made  upon  a  bona  fide  debt 
by  the  debtor  in  favor  of  the  creditor,  without  the 
knowledge  of  the  creditor,  and  the  issuance  of  an 
execution  thereon  at  the  request  of  the  debtor,  and  a 
le\y  on  the  debtor's  goods  by  virtue  thereof — also 
without  the  knowledge  of  the  creditor — for  the  purpose 


§  185         LEVY  ON  PERSONAL  PROPERTY.  1 98 

of  enabling  the  creditor  to  obtain  priority  over  other 
creditors  of  the  debtor,  is  such  a  fraud  upon  the  other 
creditors  as  renders  the  judgment  and  levy  void,  as  to 
an  attachment  or  execution  in  favor  of  the  other 
creditors  afterwards  levied  on  the  same  property. 
(Wilcoxson  v.  Burton,  27  Cal.  228.) 

§  185.  Staying  Execution. — If  a  judgment  upon 
which  an  execution  issues  and  the  execution  itself  are 
void  upon  their  face,  the  court  has  power  on  motion 
to  afford  relief,  and  can  arrest  the  process.  (Sanchez 
V.  Carriaga,  31  Cal.  170.) 

Notice  of  a  motion  to  set  aside  an  execution  and  a 
levy  made  thereunder,  will  not  operate  as  a  stay  of 
proceedings.  (Bryan  v.  Berry,  8  Cal.  p.  124.)  On 
this  point,  the  court  says:  "We  think  the  District 
Court  did  not  err  in  overruling  the  modon  to  set 
aside  the  execution  and  levy.  The  notice  that  a 
motion  would  be  made,  did  not  operate  as  a  stay  of 
proceedings.  After  giving  the  notice,  the  defendant 
should  have  procured  an  order  staying  the  sale  under 
the  execudon  until  his  modon  could  have  been  heard." 
(Greenup  z^.  Brown,  Breese,  193;  Beard  v.  Foreman, 
Breese,  385  ;  Robinson  v.  Chisseldine,  4  Scam.) 

Where  third  pardes  have  purchased  at  an  execu- 
tion sale,  it  is  too  late  to  move  to  set  aside  the  exe- 
cution. 

An  undertaking  for  costs  and  damages  under  §  941, 
Code  of  Civil  Procedure,  stays  proceedings  on  an 
appeal  in  all  cases,  except  those  specified  in  §§  942-5, 
Code  of  Civil  Procedure,  and  it  was  held,  in  Root  v. 
Bryant,  54  Cal.  183,  that  upon  an  appeal  from  a 
judgment  for  the  foreclosure  of  a  lien  and  the  sale  of 
the  property  subject  thereto — the  appeal  being  taken 


199  LEVY  ON  PERSONAL  PROPERTY.       §§    186-I9O 

by  a  lien-holder,  not  in  possession  of  the  land,  whose 
lien  was  adjudged  subordinate  to  the  lien  foreclosed — 
that  the  undertaking  for  costs  and  damages  staid  the 
judgment. 

§  186.  When  Voidable. — If  an  execution  directs 
the  levy  of  more  money  than  the  judgment  calls  for, 
it  is  not  for  that  reason  void,  but  only  voidable.  (Hunt 
V.  Loucks,  38  Cal.  372.) 

§  187.  When  Amendable. — If  an  execution  calls 
for  too  much  money,  it  will  not  be  set  aside,  but 
amended,  so  as  to  agree  with  the  judgment,  upon  the 
application  of  the  parties  to  it,  or  either  of  them. 
(Hunt  V.  Loucks,  i"^  Cal.  372.) 

§  188.     Sales  when  Valid   and  when  Void. — 

Sales  to  a  bona  fide  purchaser  under  voidable  execu- 
tions are  valid,  though  the  executions  be  afterwards 
set  aside,  but  sales  under  void  executions  are  invalid, 
and  pass  no  title,  even  to  a  bona  fide  purchaser. 

§  189.  Not  open  to  Collateral  Attack. — Execu- 
tions which  are  merely  voidable  cannot  be  attacked 
collaterally  even  by  the  parties  to  them,  much  less  by 
strangers.      (Hunt  v.  Loucks,  38  Cal,  372.) 

§  190.  Executions  not  Void. — Executions  which 
have  been  issued  according  to  the  established  course 
of  practice,  and  are  not  so  erroneous  that  they  cannot 
be  amended,  are  not  void.      (Hunt  v.  Loucks,  "^^Z  Cal. 

372.) 

An  execution  which  is  not  issued  in  the  name  of 
the  people,  or  directed  to  the  sheriff,  is  held  in  the 


§191  LEVY  ON  PERSONAL  PROPERTY.  200 

case  of  Hibberd  v.  Smith.  50  Cal.  511,  to  be  amend- 
able, and,  therefore,  is  not  void,  but  only  voidable,  and 
a  sale  under  it  is  valid. 

§  191.  Indemnity  Bonds — Sheriff 's  Jury. — The 
numerous  suits  to  be  found  in  the  court  records  against 
sheriffs  and  constables  would  seem  to  indicate  that  the 
greatest  risks  incurred  by  these  officers  in  civil  cases 
lie  in  the  taking  of  property  under  writs  of  attach- 
ment and  execution.  Where  the  property  belongs  to 
the  defendant,  and  there  is  no  controversy  concern- 
ing its  ownership,  the  path  of  duty  is  smooth  and 
clear.  The  officer  has  only  to  follow  the  course 
pointed  out  by  the  law  to  a  satisfactory  conclusion. 
But  when  the  property  levied  upon  is  claimed  by  a 
stranger  to  the  writ,  the  officer's  responsibility  begins. 
When  the  creditor  appeals  to  the  courts  for  aid  in 
the  collection  of  his  account,  the  debtor,  as  a  general 
rule,  either  succumbs  to  the  inevitable  force  of  cir- 
cumstances or  assumes  an  attitude  of  hostility.  If  he 
submits  to  a  seizure  and  sale  of  his  effects,  in  acknowl- 
edgment of  the  justness  of  the  creditor's  claim,  the 
officer's  course  is  simple  and  easily  performed.  If,  on 
the  other  hand,  the  debtor  choose  to  throw  obstacles 
in  the  creditor's  way,  the  officer  finds  himself  beset 
with  difficulties  and  dangers.  Transfers  of  personal 
property  are  easily  effected,  and,  under  the  pressure 
of  legal  proceedings,  the  w^hilom  successful  merchant, 
contractor,  or  what  not,  has  suddenly  become  insolvent. 
If  the  transfer  has  been  legally  made,  the  creditor  has 
no  redress.  If  the  requirements  of  the  law  have  not 
been  complied  with,  concerning  the  delivery  and  pos- 
session of  the  property,  the  creditor  may  cause  it  to 
be  seized  under  legal  process  and  made  to  answer  for 


20I  LEVY  ON  PERSONAL  PROPERTY.  §191 

the  debt.  Although  the  debtor  may  have  actually  sold 
his  property,  received  the  purchase-money  for  it,  and 
given  written  evidence  to  the  purchaser  of  the  sale, 
yet  the  sale  will  not  stand  before  the  law  if  there  has 
not  been  an  actual  delivery  of  the  property  and  a 
continued  possession  thereof  in  the  purchaser.  Relying 
upon  his  legal  rights,  which  so  closely  adapt  themselves 
to  his  moral  rights  in  the  matter,  the  creditor  pursues 
the  property  and  claims  his  remedy  in  it.  The  sooner, 
then,  that  the  officer  who  has  levied  upon  the  prop- 
erty secures  an  indemnity  bond  with  sureties  upon 
whom  he  can  rely  for  the  payment  of  any  judgment 
that  may  be  rendered  against  him  in  favor  of  the 
claimant — the  easier  will  be  the  burden  of  his  duties 
thereon.  §  689,  Code  Civil  Procedure,  provides  that: 
"Whenever  property  levied  upon  under  execution  be 
claimed  by  a  third  person  as  his  property,  the  sheriff 
may  summon  from  his  county  six  persons  qualified  as 
jurors,  between  the  parties,  to  try  the  validity  of  the 
claim.  He  must  also  give  notice  of  the  claim  and  of 
the  time  of  trial  to  the  plaintiff,  who  may  appear 
and  contest  the  claim  before  the  jury.  The  jury  and 
the  witnesses  must  be  sworn  by  the  sheriff,  and  if 
their  verdict  be  in  favor  of  the  claimant,  the  sheriff 
may  relinquish  the  levy,  unless  the  judgment  creditor 
give  him  a  sufficient  indemnity  for  proceeding  thereon. 
The  fees  of  the  jury,  the  sheriff,  and  the  witnesses 
must  be  paid  by  the  claimant,  if  the  verdict  be  against 
him;  otherwise,  by  the  plaintiff.  Each  party  must 
deposit  with  the  sheriff,  before  the  trial,  the  amount 
of  his  fees  and  the  fees  of  the  jury,  and  the  sheriff 
must  pay  the  same  to  the  prevailing  party. 

"The  plaintiff  is  entided  to  a  reasonable  time    to 
furnish  the  bond — dependent  mainly  upon  the  distance 


§§    192-194       I'EVY  ON  PERSONAL  PROPERTY.  202 

he  has  to  go  to  procure  the  sureties,  and  in  this,  the 
officer  should  indulge  him  so  far  as  he  can  do  so  with 
safety  to  himself.  If  the  plaintiff  or  his  attorney  agree 
to  give  the  bond,  the  plaintiff  is  responsible  in  law  to 
the  officer  from  that  time ;  and  if  the  plaintiff  is  finan- 
cially responsible,  the  officer  may  safely  proceed  to 
levy,  if  he  has  not  already  done  so.  It  would  not, 
however,  be  advisable  to  notice  the  property  for  sale 
until  the  receipt  of  the  bond." 

§  192.  Time  a  Bond  takes  Effect. — A  bond  to 
indemnify  a  sheriff  takes  effect  from  the  time  of  its 
delivery.      (Buffendeau  z>.  Brooks.  28  Cal.  642.) 

§  193.  What  the  Writ  must  Require. — The 
writ  of  execution  issued  out  of  the  Superior  Court 
must  be  issued  in  the  name  of  the  people,  sealed  with 
the  seal  of  the  court,  and  subscribed  by  the  clerk,  and 
be  directed  to  the  sheriff,  and  it  must  intelligibly  refer 
to  the  judgment,  stating  the  court,  the  county  where 
the  judgment  roll  is  filed,  and  if  it  be  for  money,  the 
amount  thereof  and  the  amount  actually  due  thereon, 
and  if  made  payable  in  a  specified  kind  of  money  or 
currency,  the  execution  must  also  state  the  kind  of 
money  or  currency  in  which  the  judgment  is  payable. 
(See  §  682,  C.  C.  P.) 

§  194.     Execution   after   Death  of  a   Party. — 

Notwithstanding  the  death  of  a  party  after  the  judg- 
ment, execution  thereon  may  be  issued,  or  it  may  be 
enforced  as  follows : 

I.  In  case  of  the  death  of  the  judgment  creditor, 
upon  the  application  of  his  executor,  or  administrator, 
or  successor  in  interest; 


203  LEVY  ON  PERSONAL  PROPERTY.   §§  1 95,  1 96 

2.  In  case  of  the  death  of  the  judgment  debtor,  if  the 
judgment  be  for  the  recovery  of  real  or  personal 
property,  or  the  enforcement  of  a  lien  thereon.  (§  686, 
C.  C.  P.) 

If  execution  is  actually  levied  upon  any  property  of 
the  decedent  before  his  death,  the  same  may  be  sold 
for  the  satisfaction  thereof;  and  the  officer  making  the 
sale  must  account  to  the  executor  or  administrator  for 
any  surplus  in  his  hands,      (See  §  1505,  C.  C.  P.) 

§  195.  "Receiving"  the  Writ, — The  execution 
may  be  made  returnable,  at  any  time  not  less  than  ten 
nor  more  than  sixty  days  after  its  receipt  by  the  sheriff, 
to  the  clerk  with  whom  the  judgment-roll  is  filed. 
(§  683,  C.  C.  P.)  The  receipt  of  a  writ  by  the  officer 
dates  from  the  time  he  endorses  it  as  received,  A 
writ  may  be  handed  to  a  sheriff  and  he  may  refuse  to 
"receive"  it  until  his  fees  for  service  be  paid.  The 
time  for  its  return  does  not  therefore  commence  to 
run  until  it  has  been  endorsed  "received," 

§  196.  Property  and  Rights  of  Property  liable 
to  Levy. — All  goods,  chattels,  moneys,  and  other 
property,  both  real  and  personal,  or  any  interest 
therein  of  the  judgment  debtor,  not  exempt  by  law, 
and  all  property  and  rights  of  property  seized  and 
held  under  attachment  in  the  action,  are  liable  to 
execution.  Shares  and  interest  in  any  corporation 
or  company,  and  debts  and  credits,  and  all  other 
property,  both  real  and  personal,  or  any  interest  in 
either  real  or  personal  property,  and  all  other  prop- 
erty not  capable  of  manual  delivery,  may  be  attached 
on  execution,  in  like  manner  as  upon  writs  of  attach- 
ment.    Gold-dust  must  be  returned  by  the  officer  as 


§197  LEVY  ON  PERSONAL  PROPERTY.  204 

SO  much  money  collected,  at  its  current  value,  without 
exposing  the  same  to  sale.  Until  a  levy,  property  is 
not  affected  by  the  execution.      (§  688,  C.  C.  P.) 

§  197.  Levy  upon  Judgments. — The  method  of 
levying  upon  a  judgment  is  so  clearly  and  authoritively 
pointed  out  in  the  decision  of  the  Supreme  Court  of 
the  State  of  California,  in  the  case  of  McBride  v.  Fallon 
(decision  filed  May  30,  1884),  that  the  portion  of  that 
decision  relating  thereto  is  herewith  quoted,  as  follows : 

"After  enumerating  the  kinds  of  property  of  a  judg- 
ment debtor  liable  to  execution,  the  code  provides 
that  'shares  and  interests  in  any  corporation  or  com- 
pany and  debts  and  credits  '^  '='•  *  and  all  other 
property  not  capable  of  manual  delivery,  may  be 
attached  on  execution  in  like  manner  as  upon  writs  of 
attachment.'      (C.  C.  P.  688.) 

"'Debts  and  credits,  and  property  not  capable  of 
manual  delivery,  must  be  attached '  in  the  mode 
pointed  out  in  subdivision  5,  §  542,  C.  C.  P.  That  is, 
'  by  leaving  with  the  person  owing  such  debts,  or 
having  in  his  possession  or  under  his  control  such 
credits  and  other  personal  property,  or  with  his  agent, 
a  copy  of  the  writ  and  a  notice  that  the  debts  owing  by 
him  to  the  defendant,  or  the  credits  and  other  personal 
property  in  his  possession  or  under  his  control,  belong- 
ing to  the  defendant,  are  attached  in  pursuance  of  such 
writ' 

"The  fact  that  a  debt  is  evidenced  by  a  judgment 
does  not,  in  our  opinion,  make  it  anything  more  or  less 
than  a  debt ;  or  more  capable  of  manual  delivery  than 
it  would  be  if  not  so  evidenced.  No  provision  is  made 
for  attaching  or  levying  on  evidences  of  debt.  It  is  the 
debt  itself  which  may  be  attached  by  writ  of  attachment, 


205  LEVY  ON  PERSONAL  PROPERTY.         §  I  98 

or  '  on  execution  in  like  manner  as  upon  writs  of 
attachment'  This  we  think  to  be  the  meaninor  of  the 
code  ;  and  the  mode  prescribed  by  it  is  exclusive.  (C. 
C.  P.  4  and  18.)  These  views  are  not  opposed  to  any 
heretofore  expressed  by  this  court  in  any  case  to  which 
our  attention  has  been  directed.  In  Adams  v.  Hackett 
(7  Cal.  187),  a  referee,  in  proceedings  supplementary 
to  execution,  made  an  order  that  the  judgment  debtor 
should  assign  a  judgment  which  he  held  against  a  third 
party.  The  Superior  Court  vacated  the  order,  and  on 
appeal,  this  court  reversed  the  order  of  the  Superior 
Court.  It  is  unnecessary  to  point  out  the  distinction 
between  that  case  and  this. 

"  In  Crandall  z'.  Bien  (13  Cal.  15),  Adams  z^.  Hackett, 
although  not  overruled,  appears  to  be  doubted. 

"  In  Davis  v.  Mitchell  (34  Id.  81),  it  was  held  that  a 
sheriff  might,  under  an  execution  and  sale,  levy  on  a 
promissory  note  belonging  to  the  judgment  debtor, 
and  that  the  purchaser  took  it  subject  to  any  defense 
which  the  maker  might  have  had  against  it,  if  the  payee 
had  retained  it.  In  that  case,  the  sheriff  had  posses- 
sion of  the  note,  and  delivered  it  to  the  purchaser. 
The  court  alluded  to  that  circumstance,  without  pass- 
ing upon  its  materiality.  The  case  arose  and  was 
decided  before  the  enactment  of  the  code,  which,  while 
it  does  not  prescribe  a  mode  of  proceeding  in  such 
cases  materially  different  from  that  pointed  out  by  the 
late  Practice  Act,  makes  that  mode  exclusive.  But 
independently  of  that  circumstance,  we  could  not,  with 
our  present  views,  assent  to  the  doctrine  of  that  case." 

§  198.  Levy  and  Sale  of  Franchise. — A  fran- 
chise may  be  treated  as  property  and  sold  under  exe- 
cution.    For  the  satisfaction  of  any  judgment  against 


^§  199,  200   LEVY  ON  PERSONAL  PROPERTY.  206 

a  corporation,  authorized  to  receive  tolls,  its  franchise 
and  all  the  rights  and  privileges  thereof  may  be  levied 
upon  and  sold  under  execution,  in  the  same  manner 
and  with  like  effect  as  any  other  property.  §  389  of 
the  Civil  Code  requires  the  sheriff  to  give  to  the  pur- 
chaser at  such  sale  a  certificate  of  purchase.  Such 
sale  must  be  made  in  the  county  in  which  the  corpora- 
tion has  its  principal  place  of  business,  or  in  which  the 
property  or  some  portion  thereof,  upon  which  the 
taxes  are  paid,  is  situated. 

§  199.  Redemption  of  Franchise. — The  corpor- 
ation may,  at  any  time  within  one  year  after  such 
sale,  redeem  the  franchise,  by  paying  or  tendering  to 
the  purchaser  thereof,  with  ten  per  cent,  interest 
thereon,  but  without  any  allowance  for  the  toll  which 
he  may  in  the  meantime  have  received;  and  upon 
such  payment  or  tender,  the  franchise  and  all  the 
rights  and  privileges  thereof,  revert  and  belong  to 
the  corporation,  as  if  no  such  sale  had  been  made. 
(§  392,  Civil  Code.) 

§  200.  Property  of  Wife  not  Liable  for  Hus- 
band's Debt. — The  property  of  the  wife  cannot  be 
taken  under  an  execution  against  her  husband.  §  8 
of  Article  XX  of  the  Constitution,  provides  that  all 
property,  real  and  personal,  owned  by  either  husband 
or  wife  before  marriage,  or  that  acquired  by  either  of 
them  afterwards,  by  gift,  devise,  or  descent,  shall  be 
their  separate  property  ;  and  §  168  of  the  Civil  Code 
declares  that  the  earnings  of  the  wife  are  not  liable 
for  the  debts  of  the  husband. 

A  transfer  of  personal  property  by  gift  from  the 
husband  to  the  wife  creates  separate  property  in  the 


207  LEVY  ON  PERSONAL  PROPERTY.         §  200 

wife,  and  is  valid  as  to  all,  except  existing  creditors 
and  bona  fide  subsequent  purchasers  without  notice. 
Such  a  transfer  cannot  be  attacked  as  fraudulent  and 
void  as  to  subsequent  creditors  in  an  action  for  the 
recovery    of   the    property    by    the   wife   against    an 
officer  who  has  seized  it  under  an  execution,  unless 
he  proves  not  only  the  issuing  of  the  execution,   the 
levy,  and  that  he  was  a  creditor,  but  also  the  rendition 
of  a  judgment  upon  his  debt,  and  that  the  execution 
was  issued  upon  the  judgment.     In  the  case  of  Kane 
V.  Desmond   (opinion  filed  June  6th,    1883),    the  de- 
fendant seized  the  piano  in  controversy  from  the  pos- 
session of  plaintiff,  by  an  execution  issued  in  favor  of 
A.  L.  Day  v.  Thomas  Kane,  and  sold  it  at  execution 
sale  as  the  property  of  Kane  to  satisfy  the  execution. 
Thomas  Kane  was  the  husband  of  plaintiff     On  the 
trial  of  the  case,  the  court  found  that  the  plaintiff  was, 
at  the  time  of  the  seizure  and  sale,  the  sole  and  ex- 
clusive owner  of  the  property,  in  her  own  right,  and 
entitled  to  its  possession,  and  that  her  husband  had 
no   right  or  title  to  it.     The  seizure  of  the  property 
was,    therefore,    wrongful.      (Wellman  v.  English,    38 
Cal.  583;  Lewis  v.  Johns,   34,    Id.   629;   Van   Pelt  v. 
Little,  14,  Id.   194);   and  the  plaintiff  was  entitled  to 
recover.     The  court  said:   "But  the  finding  is  attacked 
as  aeainst  the  law  and  the  evidence  in  this,  that  the 
evidence   showed  the  plaintiff's  claim  of  title   to   the 
property  was   founded  on   a  gift  from   her  husband, 
which  was  void  as  to  his  creditors.     But  it  does  not 
appear  that  the  husband  was  indebted  to  anyone  at 
the  time  of  the  gift,  except  to  the  person  from  whom 
he  had  rented  the  piano  under  an  agreement  to  pur- 
chase  it  on   the   installment   plan.     Being  free  from 
debt,  the  husband  had  the  right  to  transfer  his  interest 


§  200         LEVY  ON  PERSONAL  PROPERTY.  2o8 

in  the  property  to  his  wife  by  gift,  and  the  wife,  under 
tlie  law,  had  the  capacity  to  take  and  hold  it  in  her 
own  name  and  right."  (Dow  v.  Gould  &  Curry 
S.  M.  Co.,  31  Cal.  629;  Woods  v.  Whitney,  42  Id. 
358  ;  Riggings  v.  Higgings,  46  /</.  259  ;  Peck  v.  Brum- 
magin,  31  Id.  440.)  The  gift  was  complete,  for  the 
evidence  tended  to  show  that  immediately  after  the 
husband  had  rented  the  piano  under  the  agreement 
to  purchase,  he  delivered  it  to  his  wife  as  a  gift,  and 
she  accepted  it,  and  used  it  continuously  as  her 
separate  property  until  the  time  of  the  seizure.  Now, 
this  transfer  by  gift  was  valid  and  effectual  between 
herself  and  her  husband  and  all  the  world,  except 
existing  creditors  2svdi  bona  fide  subsequent  purchasers 
without  notice.  There  was  no  proof  that  Day — the 
execution  creditor — was  a  creditor  of  the  husband  at 
the  time  of  the  gift,  and  there  is  no  presumption  that 
the  gift  was  void  as  to  him  as  a  subsequent  creditor. 
(Wells  V.  Stout,  9  Cal.  479;  Hussey  v.  Castle,  41  Id. 

239-) 

Presumptively,  therefore,  the  gift  was  valid  as  be- 
tween the  parties ;  and,  being  valid,  it  vested  in  the 
plaintiff,  as  of  her  own  right,  whatever  interest  her 
husband  had  in  the  property.  It  was  therefore  her 
separate  property ;  and  the  transaction  by  which  she 
acquired  it  cannot  be  attacked  as  fraudulent  and  void 
as  to  subsequent  creditors,  except  by  such  a  creditor 
or  an  officer  representing  him.  Here,  however,  the 
suit  is  not  against  one  who  claims  to  be  a  creditor; 
it  is  against  the  officer  who  levied  the  execution. 
But  an  officer  who  seizes  the  separate  property  of 
the  wife  by  an  execution  against  her  husband,  is  not 
the  representative  of  the  execution  creditor,  for  the 
purpose  of  attacking  a  legal  transfer  to  the  wife,  un- 


209  LEVY  ON  PERSONAL  PROPERTY.         §  20I 

less  he  produces  the  judgment  upon  which  the  exe- 
cution was  issued.  It  is  well  setded  that  where  an 
officer  is  sued  for  seizing  or  selling  the  property  of 
one  under  an  execution  against  another,  he  must,  in 
order  to  show  that  the  transfer  of  the  property  by  the 
execution  debtor  was  fraudulent  and  void  as  to  the 
execution  creditor,  prove  not  only  the  issuing  of  the 
execution,  the  levy,  and  that  he  was  a  creditor,  but 
also  the  rendition  of  a  judgment  upon  his  debt,  and 
that  the  execution  was  issued  upon  the  judgment. 
(Bickerstaff  v.  Doub,  19  Cal.  109;  2  Hillard  on  Torts, 
544;  Ameses.  Sturtevant,  2  Allen,  583;  Martin  v.  Pad- 
ger,  5  Burr,  2663  ;  Lake  v.  Bellers,   i  Ld.  Rayd,  ^y^.) 

§  201.  Delay  in  Service  of  Writ  Inexcusable. 
It  is  an  old  principle  of  law  that,  on  the  reception  of  a 
ministerial  writ,  it  is  the  duty  of  the  officer,  if  it  be 
regular  on  its  face,  to  obey  its  authority.  He  is  not 
bound  to  enquire  whether  there  is  a  judgment  to 
support  the  execution,  or  whether  the  execution  cor- 
responds exactly  with  the  judgment.  If  it  be  regular 
on  its  face,  it  is  his  duty  to  execute  it ;  if  there  be  any 
irregularity,  it  has  been  held  that  that  affects  the 
parties,  not  the  ministerial  officers.  While  the  cold 
facts  of  experience  have  taught  many  officers  other- 
wise, the  question  of  the  officer's  responsibility  in  that 
regard  will  here  be  passed,  and  referred  to  elsewhere. 

The  terse  maxim,  "delays  are  dangerous,"  finds 
significant  application  in  nearly  all  the  duties  of  sheriffs 
and  constables.  It  conveys  an  admonition  which 
should  never  be  lost  sight  of  from  one  year's  end  to 
another.  The  evil  of  procrastination  has  subjected 
many  an  officer  to  loss,  and  they  who  are  subject  to  it 
as  a  habit  must  prove  unfitted  for  the  discharge  of  the 
14 


§  201         LEVY  ON  PERSONAL  PROPKRTV.  2IO 

important  duties  that  devolve  upon  them  as  officers. 
An  illustration  in  point  (and  there  are  many  more  on 
record  in  the  courts)  may  be  found  in  the  case  of  Howe 
v.  Union  Insurance  Co.,  42  Cal.  528,  wherein  the 
I^lain tiff  was  subjected  to  a  loss  of  ^1465,  by  reason  of 
the  neglect  of  an  officer  to  serve  a  garnishment  under 
an  execution  which  had  been  placed  in  his  hands. 
Howe  commenced  an  attachment  suit  against  one 
McCann,  and  garnisheed  money  of  McCann's  in  the 
defendant's  hands,  and  afterwards  recovered  judgment, 
and  issued  execution  to  the  sheriff.  The  officer  went  to 
the  office  of  the  insurance  company  for  the  purpose  of 
collecting  the  money.  The  secretary  of  the  company 
admitted  having  the  money,  but  did  not  pay  it  over. 
The  sheriff  did  not  levy  the  execution,  supposing  that 
the  money  would  be  paid  in  a  day  or  two.  Before  any 
further  step  had  been  taken,  and  within  less  than  four 
months  from  the  time  when  the  attachment  was  issued 
and  served,  proceedings  were  commenced  to  have 
McCann  declared  a  bankrupt.  At  that  time,  the  bank- 
rupt law  provided  that  all  attachments  upon  mesne 
process  within  four  months  before  the  proceedings  in 
bankruptcy,  shall  be  thereby  dissolved,  in  case  the 
defendant  in  the  attachment  be  declared  a  bankrupt. 
Under  that  provision,  it  is  clear  that  if  the  execution 
had  been  levied  upon  the  fund  before  the  proceedings 
in  bankruptcy  were  commenced,  he  would  have 
acquired  a  lien  upon  the  fund,  which  would  not  have 
been  divested  by  the  proceedings  in  bankruptcy.  As 
it  was,  the  money  went  to  the  assignee  in  bankruptcy, 
and  Howe  was  obliged  to  take  merely  his  pro  rata  with 
the  other  creditors.  The  sheriff's  proper  course,  in 
the  premises,  was  to  have  served  a  garnishment  upon 
the  insurance  company,  and  demanded  possession  of 
the  money. 


2  I  I  LEVY  ON  PERSONAL  PROPERTY.         §  202 

§  202.  Levy  on  Partnership  Property. — If  a 
sheriff  has  an  execution  against  the  property  of  one 
member  of  a  partnership,  it  is  his  duty  to  levy  on  the 
interest  of  that  partner  in  the  partnership  effects ;  and, 
in  order  to  effect  a  sale  of  the  same,  he  may  take 
possession  of  the  entire  property ;  and  if  he  only  sells 
the  interest  of  the  partner  against  whom  the  judgment 
was  rendered,  he  is  not  liable  to  the  other  parties  for 
damages.      (Clark  v.  Gushing,  52  Cal.  617.) 

If  two  are  tenants  in  common  in  personal  property, 
and   the  sheriff  in  a  suit  against  one,   brought  on  a 
claim  against  him,  attaches  his  interest  in  the  common 
property,  he  may  take  all  the  property  into  his  pos- 
session  without  being  guilty  of  a  conversion  of  the 
other  tenant's  share.      (Veach  v.  Adams,  51  Cal.  609.) 
In    Waldman    v.    Broder,    10   Cal.    378,    certain   per- 
sonal property  belonging  to  Waldman  and  one  Franck 
had  been  seized    by  Broder,  as  sheriff,    by  virtue   of 
an   execution    in    his   hands    against  the  property  of 
Franck ;  and  Waldman  who  was  a  co-tenant  of  Franck, 
having   brought  his   action    in    replevin    against    the 
sheriff,  the  District   Court  instructed  the  jury  to  the 
effect  that  if  Waldman  and   Franck  were  owners  of 
the  property  as  partners  or  joint  owners  of  it  in  any 
other  capacity,   the  plaintiff,  Waldman,  could  not  re- 
cover;  and   the  jury  having  found  a  verdict  for  the 
defendant,   it  was    held    by  the    Supreme  Court  that 
the  instruction  was  correct,  the  court  observing  that 
"if  the  defendant,  as  sheriff,   levied  on  the  property 
while  it  was  the  joint  property  of  plaintiff  and  Franck 
(against  the  latter  of  whom  he  had  an  execution),  this 
is  a  justification.     He  had  a  right  to  levy  on  it,  and 
take  it  into  possession  for  the  purpose  of  subjecting 
it  to  sale." 


§  202         LEVY  ON  PERSONAL  rROPERTY.  2  I  2 

In  the  later  case  of  Bernal  v.  Hovious,  17  Cal.  541, 
the  case  of  Waldman  z'.  Broder  was  cited  and 
approved,  the  language  of  Mr.  Chief  Justice  Field, 
who  delivered  the  opinion  of  the  court,  being  as  fol- 
lows: "Vasquez  and  the  plaintiffs  were  tenants  in 
common  of  the  grain,  and  in  attaching  the  interest 
of  one  of  them,  the  sheriff  was  justified  in  taking  and 
detaining  the  possession  of  the  entire  quantity,  though 
he  will  not  be  authorized  to  sell  under  the  execution 
on  the  judgment  which  may  be  recovered  in  that  ac- 
tion anything  but  the  undivided  one-third  interest  of 
Vasquez.  The  purchaser  at  the  sale  and  the  plaintiff 
will  then  be  tenants  in  common  of  the  property. 

"Where  two  persons  who  are  tenants  in  common, 
the  one  farming  the  land  of  the  other,  under  an 
agreement  by  which  the  former  is  to  give  the  owner 
of  the  land  a  part  of  the  crop  raised  for  his  own 
use,  a  contract  may  be  entered  into  between  them, 
by  which  the  one  who  performs  the  work  becomes 
divested  of  an  attachable  interest  until  the  conditions 
of  the  contract  have  been  complied  with.  In  the  case 
of  Howell  v.  Foster,  decision  filed  in  department 
one  of  the  Supreme  Court,  April  30,  1884,  the  court 
say: 

"'The  plaintiff  brought  this  action  to  recover  the 
possession  of  4455  sacks  of  wheat,  764  sacks  of  bar- 
ley, and  230  head  of  hogs.  In  his  complaint,  which 
was  verified,  he  alleged  that  he  was  the  owner  of 
the  grain  and  hogs,  and  that  defendant  had,  without 
his  consent,  taken  the  said  property  into  his  posses- 
sion, and  continued  to  withhold  it  from  the  plaintiff. 
Defendant  who,  at  the  times  mentioned  in  the  record, 
was  sheriff  of  Tehama  county,  answering  the  com- 
plaint— the   answer   being   also    verified — denied    the 


213  LEVY  ON  PERSONAL  PROPERTY.   ,      §  202 

ownership  by  the  plaintiff  of  the  property  in  ques- 
tion, and  alleged  that  the  same  was  owned  by  the 
plaintiff  and  one  Mayfield  as  tenants  in  common, 
and  that  in  his  official  capacity  he  (defendant)  levied 
upon  and  took  all  of  the  property  into  his  possession, 
under  and  by  virtue  of  two  certain  writs  of  attach- 
ment duly  issued  out  of  the  Superior  Court  of  Te- 
hama county  in  certain  actions  against  Mayfield.  De- 
fendant also  alleged  in  his  answer  that  after  his  levy, 
the  plaintiff,  by  virtue  of  a  writ  of  replevin,  took  all 
of  the  property  from  his  (defendant's)  possession,  and 
asked  a  return  thereof  to  him,  to  be  held  subject  to 
the  aforesaid  writs  of  attachment.  When  the  case 
came  on  for  trial,  the  court  below,  on  motion  of  the 
plaintiff  and  against  the  objection  and  exception  of 
the  defendant,  allowed  the  plaintiff  to  amend  his 
complaint  by  striking  therefrom  all  of  the  allegations 
in  relation  to  the  two  hundred  and  thirty  head  of 
hogs,  and  also  struck  out  of  the  defendant's  answer 
all  reference  thereto.  This  was  done  upon  the  verbal 
statement  of  plaintiff's  counsel  that  the  defendant  had 
not  in  fact  levied  the  writs  of  attachment  upon  the 
hogs.  But  not  only  did  the  verified  complaint  of 
the  plaintiff  show  that  defendant  had  taken  the  hogs, 
but  defendant,  in  his  verified  answer,  alleged  that 
he  had  levied  upon  them,  and  further  alleged  that 
subsequently  to  his  levy,  the  plaindff,  by  virtue  of 
a  writ  of  replevin,  had  taken  the  hogs  from  his 
(defendant's)  possession.  Under  such  circumstances 
the  court  below  erred  in  allowing  the  amendment  to 
the  complaint  and  in  striking  out  the  portions  of  the 
answer  referred  to ;  for,  if  the  averments  of  the  an- 
swer were  true,  the  effect  of  the  action  of  the  court 
was    to   take   the  hogs   from    the  possession    of  the 


§  202         LEVY  ON  PERSONAL  PROPERTY.  214 

defendant  and  transfer  them  to  the  plaintiff  without 
affordini^  the  defendant  an  opportunity  to  try  the 
question  of  his  right  to  their  return,  which  he  affirma- 
tively alleged.  For  this  error  we  must  reverse  the 
judgment  and  remand  the  cause  for  a  new  trial ;  and 
as  there  must  l)e  a  new  trial,  it  is  proper  that  we 
should  pass  upon  the  other  question  in  the  case. 

"  The  action  of  the  court  below  in  the  respect  already 
indicated,  left  the  case  to  be  tried  only  as  to  the  wheat 
and  barley ;  and  it  was  as  to  that  only  that  the  case 
was  tried.  L'pon  this  branch  of  the  case,  the  question 
is,  '  Did  Mayfield  have  an  attachable  interest  in  the 
grain?'  It  was  raised  by  him  on  land  belonging  to  the 
plaintiff,  under  a  written  instrument  by  which  the 
plaintiff  leased  and  demised  to  Mayfield  the  land  for  a 
certain  term,  with  the  covenant,  among  others,  on  the 
part  of  Mayfield,  that  he  would  till  and  cultivate  the 
land  in  a  good  farmer-like  manner,  and,  at  the  proper 
time,  would  sow  the  lanci  to  wheat,  oats  or  barley,  or 
proportions  of  each,  and,  at  the  proper  time,  would 
harvest,  thresh,  clean  and  sack  the  cfrain,  and  there- 
upon  deliver  all  of  it  to  plaintiff,  to  be  held  by  him  as 
security  for  all  advances  made  by  him  to  Mayfield, 
tofjether  with  interest  thereon,  at  the  rate  of  one  and 
one-half  per  cent,  per  month;  'and,'  proceeds  the 
contract,  'such  demands  being  satisfied,  the  said  party 
of  the  first  part  (plaintiff)  agrees,  that  upon  said  grain 
beine  sacked  and  delivered  as  aforesaid,  he  will  deliver 
and  transfer  to  the  said  party  of  the  second  part 
(Mayfield)  his  three-fourths  of  said  grain,  quality  and 
quantity  considered.' 

"The  instrument  contained  this  further  clause: 
'  And  it  is  mutually  covenanted  and  agreed  that  until 
such  delivery  and  transfer  by  the  said  party  of  the  first 


2  15  LEVY  ON  PERSONAL  PROPERTY.         §  202 

part  (plaintiff)  all  of  said  grain  shall  be  the  property 
of  the  said  party  of  the  first  part,  and  the  said  party  of 
the  second  part  (Mayfield)  shall  have  no  right  to  dis- 
pose of  any  portion  thereof.' 

"There  was  also  a  provision  to  the  effect  that  the 
grain  should  be  delivered  after  it  was  sacked,  at  the 
nearest  depot  or  warehouse,  and  that  the  plaintiff 
should  pay  one-fourth  of  the  cost  of  hauling  it  and  one- 
fourth  of  the  cost  of  the  sacks  used.  There  is  no 
doubt  that  where  one  man  farms  land  of  another  under 
an  agreement  by  which  he  is  to  give  the  owner  a  part 
of  the  crop  raised  for  its  use,  he  and  the  owner,  in  the 
absence  of  a  stipulation  providing  otherwise,  become 
tenants  in  common  of  the  crops  raised.  But  it  is  just 
as  clear  that  the  agreement  between  the  parties  may 
be  so  framed  as  to  secure  to  the  owner  of  the  land  the 
ownership  of  the  product  until  the  performance  of  a 
certain  stated  condition.  (Wentworth  v.  Miller,  53 
Cal.  9;  Andrew  v.  Newcomb,  32  N.  Y.  419  ;  Lewis  v. 
Lyman,  22  Pick.  437;  Ponder  v.  Rhea,  32  Ark.  435; 
Smith  V.  Atkins,  18  Vt.  461.)  In  the  present  case,  the 
parties  expressly  agreed  that  all  of  the  grain  raised  on 
the  land  by  Mayfield  should  be  delivered  to  the  plaintiff 
and  remain  his  property,  and  in  no  way  subject  to  the 
disposal  of  Mayfield  until  all  of  such  advances  as  the 
plaintiff  may  have  made  him  had  been  satisfied,  and 
he  had  thereupon  received  from  the  plaintiff  his  share 
of  the  grain,  which  plaintiff  bound  himself  to  deliver. 
Until  all  this  happened,  all  of  the  grain,  by  the  express 
contract  of  the  parties,  was  to  be  and  remain  the  prop- 
erty of  the  plaintiff,  and  in  no  way  subject  to  the 
disposal  of  Mayfield.  That  it  was  competent  for  the 
parties  so  to  provide  has  already  been  shown,  and, 
having   so  provided,  it  results    that  Mayfield  had  no 


§  202         LEVY  ON  PERSONAL  PROPERTY.  2l6 

attachable  interest  in  the  grain  at  the  time  of  the  levy 
of  the  writs  in  question.  '  It  is  a  fundamental  principle,' 
says  Drake  on  Attachment,  §  245,  'that  an  attaching 
creditor  can  acquire  no  greater  right  in  attached  prop- 
erty than  the  defendant  had  at  the  time  of  the  attach- 
ment. If,  therefore,  tlie  property  be  in  such  a  situation 
that  the  defendant  has  lost  his  power  over  it,  or  has 
not  yet  acquired  such  interest  in  or  power  over  it  as 
to  permit  him  to  dispose  of  it  adversely  to  others,  it 
cannot  be  attached  for  his  debt.'  See,  also,  authorities 
cited  in  support  of  the  text,  and  Tuohy  v.  Wingfield, 
52  Cal.  319. 

'*Our  conclusion  is,  that  the  ruling  of  the  court  below 
was  right  with  respect  to  the  grain,  but  erroneous  in 
regard  to  the  hogs  involved  in  the  controversy. 

"Judgment  and  order  reversed,  and  cause  remanded 
for  a  new  trial.  Ross,  J. 

We  concur: 

McKlNSTRV,  J., 

McKee,  J." 

The  interest  of  one  partner  in  the  partnership 
chattels  is  the  subject  of  levy  and  sale  by  the  sheriff, 
on  an  execution  against  one  of  the  partners.  But  the 
sheriff  can  only  seize  and  sell  the  interest  and  right  of 
the  judgment  partner  therein,  subject  to  the  prior 
rights  and  liens  of  the  other  partners  and  the  joint 
creditors  therein.  In  Jones  v.  Thompson,  12  Cal.  199, 
the  court  held  that  the  interest  of  one  partner  in  part- 
nership property  is  such  an  estate  under  our  statute  as 
may  be  sold  for  his  debts  ;  it  is  a  legal  estate  in  chattels. 
It  is  true  that  as  between  the  partners,  the  interest  of 
each  is  only  the  residuum  of  the  property  left  after  the 
settlement  of  the  firm  debts  ;  and  that  the  rights  of  the 


217  LEVY  ON  PERSONAL  PROPERTY.         §  202 

firm  creditors  and  the  several  partners  are  paramount 
to  the  claims  of  separate  creditors  of  the  firm. 

But  this  interest  of  the  partner  thus  defined,  is  held 
by  the  weight  of  authority  subject  to  levy  for  his  debts. 
Story  on  Part.,  §  263,  thus  states  the  rule:  "In  cases 
of  this  sort,  therefore,  the  real  position  of  the  parties, 
relatively  to  each  other,  seems  to  be  this  :  The  partner- 
ship property  may  be  taken  in  execution  upon  a  sepa- 
rate judgment  and  execution  against  one  partner;  but 
the  sheriff  can  only  seize  and  sell  the  interest  and  right 
of  the  judgment  partner  therein,  subject  to  the  prior 
rights  and  liens  of  the  other  partners  and  the  joint  credit- 
ors therein.  By  such  seizure,  the  sheriff  acquires  a 
special  property  in  the  goods  seized;  and  the  judg- 
ment creditor  himself  may,  and  the  sheriff  also,  with 
the  consent  of  the  judgment  creditor,  file  a  bill  against 
the  other  partners,  for  the  ascertainment  of  the  quan- 
tity of  that  interest,  before  any  sale  is  actually  made 
under  the  execution.  The  judgment  creditor,  however, 
is  not  bound,  if  he  does  not  choose,  to  wait  until  such 
interest  is  so  ascertained,  but  he  may  require  the 
sheriff  to  proceed  to  a  sale,  which  order  the  sheriff  is 
bound  by  law  to  obey.  In  the  event  of  a  sale,  the  pur- 
chaser at  the  sale  is  substituted  to  the  rights  of  the  execu- 
tion partner,  quoad  the  property  sold,  and  becomes  a 
tenant  in  common  thereof;  and  he  may  file  a  bill,  or  a 
bill  may  be  filed  against  him  by  the  other  partners,  to 
ascertain  the  quantity  of  interest  which  he  has  acquired 
by  the  sale." 

When  a  sheriff,  upon  an  execution  against  one 
partner,  levies  on  and  sells  partnership  property',  he 
has  a  right  to  take  possession  of  the  whole  property, 
and  deliver  it  over  to  the  purchaser. 

It   has    been    frequently  decided   b)'   the    Supreme 


§  202        LEVY  ON  PERSONAL  PROPERTY.  2l8 

Court,  that  the  creditors  of  a  partnership  are  entitled 
to  preference  over  the  creditors  of  the  individual  part- 
ners in  the  payment  of  their  debts  out  of  the  partner- 
ship property,  or  moneys  arising  therefrom,  without 
regard  to  the  priority  of  attachment  liens,  (Chase  v. 
Steel,  9  Cal.  64;  Conroy  e'.  Woods,  13  Id.  626;  Du- 
puy  z'.  Leavenworth,  17  Id.  262;  Burpee  v.  Bunn,  22 
Id.  194;  Bullock  z'.  Hubbard,  23  Id.  501.)  And  the 
same  principle  applies  as  between  the  creditors  of 
several  partnership  firms. 

In  the  case  of  Bullock  v.  Hubbard,  above  cited. 
Bishop  &  Long  were  partners.  Bishop  &  Long  as  a 
partnership  was  also  a  member  of  two  other  firms — 
Bishop,  Long  &  Steuart,  and  Bishop,  Long,  Siefert 
&  Dodsworth.  The  firms  all  failed,  and  their  prop- 
erty was  attached  by  creditors.  The  creditors  of 
Bishop,  Long  &  Steuart,  and  Bishop,  Long,  Siefert 
&  Dodsworth,  obtained  the  first  attachments,  and 
placed  them  in  the  hands  of  the  sheriff,  before  the 
creditors  of  Bishop  &  Long  placed  theirs  in  his  hands. 
The  sheriff  levied  all  the  writs  on  the  property  in  the 
order  in  which  they  were  placed  in  his  hands.  The 
sheriff  had  in  his  hands  a  sum  of  money  received 
from  the  sale  of  the  property  of  Bishop  &  Long,  to 
apply  on  the  executions  issued  on  judgments  ren- 
dered in  the  actions.  None  of  the  others,  as  part- 
nership firms,  had  any  interest  in  this  money.  The 
sheriff  commenced  an  action  requiring  the  creditors 
to  litigate  their  respective  rights  to  the  money.  The 
court  below  held,  and  the  Supreme  Court  affirmed  the 
judgment,  that  the  creditors  of  the  firm  of  Bishop  & 
Long  were  entitled  to  the  money  realized  from  the  sale 
In  the  order  of  the  priority  of  their  several  attachment 
liens. 


2  19  LEVY  ON  PERSONAL  PROPERTY.         §  202 

A  separate  creditor  of  one  of  several  partners  levied 
an  attachment  for  his  debt  upon  the  partnership  prop- 
erty, and  afterwards  made  an  agreement  with  a  trus- 
tee, to  whom  his  debtor  had  conveyed  the  property, 
by  which  the  latter  stipulated  to  pay  the  attachment 
debt  from  the  proceeds  of  a  sale  of  the  property, 
after  paying-  expenses  and  prior  claims.  It  was  held, 
in  this  case  (Burpee  v.  Bunn,  above  cited),  that  neither 
by  his  attachment  nor  by  the  agreement,  did  the 
separate  creditor  acquire  any  title  to,  or  lien  upon, 
the  property,  as  against  the  superior  equity  of  a  sub- 
sequently attaching  creditor  of  the  partnership. 

If  a  party  attach  or  levy  upon  the  individual  interest 
of  a  co-partner,  he  takes  it  subject  to  the  payment  of 
co-partnership  debts. 

In  Jones  v.  Thompson,  12  Cal.  198,  the  court  say: 
"The  interest  of  each  is  only  the  residuum  of  the 
property  left  after  the  settlement  of  the  firm  debts, 
and  that  the  riofhts  of  firm  creditors  and  the  several 
partners  are  paramount  to  the  claims  of  separate 
creditors  of  the  firm." 

Mortgage  of  Interest  of  one  of  several  Partners. — 
If  two  or  more  persons  are  partners  in  the  ownership 
and  management  of  real  estate,  and  owe  partnership 
debts,  and  one  of  the  partners  mortgages  his  inter- 
est in  the  property  to  secure  his  individual  debt,  the 
mortgagee  acquires  only  the  mortgagor's  interest  in 
the  surplus  after  the  payment  of  the  partnership 
debts ;  and  if  these  debts  equal  or  exceed  the  value 
of  the  property,  and  it  is  afterwards  sold  by  the  part- 
ners to  pay  the  partnership  debts,  the  mortgagee,  as 
against  the  purchaser,  holds  no  interest  in  the  prop- 
erty, liable  in  equity  to  be  sold,  and  the  mortgage 
cannot  be  foreclosed.      (Jones  z'.  Parsons,  25  Cal.  lOO.) 


§  202        LEVY  ON  PERSONAL  rROPERTY.  2  20 

The  lien  of  firm  creditors  is  paramount  to  the  lien 
of  individual  creditors.  And,  where  one  partner  buys 
out  his  co-partners,  agreeing  to  pay  the  debts  of  the 
firm,  the  partnership  property  remains  bound  for  firm 
debts,  just  as  before  the  sale.  The  lien  of  firm  creditors 
attaching  must  be  preferred  to  the  lien  of  an  individual 
creditor  of  the  remaining  partner  attaching  first.  A 
lien  by  attachment  enables  a  creditor  to  file  a  creditor's 
bill,  without  waiting  for  judgment  and  execution. 
Partners  may  make  a  bona  fide  sale  of  their  property 
any  time  before  their  creditors  acquire  a  lien  ;  but  such 
sale  cannot  include  a  sale  direcdy  or  indirectly  to  one 
of  the  partners,  with  a  stipulation  that  he  will  pay  the 
firm  debts,  there  having  been  no  credit  given  by  the 
individual  creditor  on  the  strength  of  an  apparent  sole 
ownership  in  the  vendee.  The  fact  that  an  individual 
creditor  obtains  judgment,  issues  execution,  and  levies 
on  firm  property,  gives  him  no  right  to  the  property  as 
against  firm  creditors  who  have  not  yet  obtained  judg- 
ment. In  such  cases  of  conflict  between  the  individual 
and  firm  creditors,  equity  has  jurisdiction.  No  action 
lies  against  the  sheriff  for  levying  the  execution  of  the 
individual  creditor,  and  a  sale  to  different  purchasers 
might  result  in  a  loss  of  the  property.  (Conroy  v. 
Woods,  13  Cal.  626.)  Distinguished,  (Reddington  v. 
Waldon,  22  Cal.  187.)  Approved,  (Burpee  z'.  Bunn, 
22  Cal.  199  ;  Bullock  v.  Hubbard,  23  Cal.  501  ;  Jones 
V.  Parsons,  25  Cal.  106;  see  Heynemann  et  al.  v. 
Dannenberg  ct  al.,  6  Cal.  376.) 

In  an  action  against  the  members  of  a  partnership, 
upon  a  joint  and  several  promissory  note,  signed  by 
them  individually,  but  not  with  the  firm  name,  an  attach- 
ment was  issued  and  levied  upon  the  interests  of 
defendants  in  the  partnership  property,  upon  which  an 


22  1  LEVY  ON  PERSONAL  PROPERTY.         §  202 

attachment  previously  had  been,  and  others  were  sub- 
sequently, levied  in  actions  against  the  firm.  Subse- 
quently, the  plaintiff,  under  §  432  of  the  Code  of  Civil 
Procedure,  amended  his  complaint,  by  alleging  the 
partnership  of  the  defendants,  and  that  the  note  was  a 
partnership  debt ;  but  the  action  still  ran  against  the 
defendants,  as  individuals,  and  judgment  was  entered 
against  them  in  that  capacity.  Judgments  having  been 
entered  in  all  the  cases,  the  property  was  sold  under 
execution  in  one  of  the  cases  against  the  firm,  and  the 
proceeds  applied  in  satisfaction  of  that  execution  and 
another  in  a  similar  case  :  Held,  that  the  money  was 
properly  applied  on  the  executions  against  the  firm  in 
preference  to  those  of  the  plaintiff.  (Commercial  Bank 
V.  Mitchell,  58  Cal.  42.)  In  this  case,  Mr.  Justice 
McKee,  who  delivered  the  opinion  of  the  court, 
said: 

"This  is  an  action  to  recover  of  the  defendant  the 
sum  of  ^1338.15,  with  seven  per  cent,  interest  from 
October  25th,  1879  ;  money  alleged  to  have  been 
collected  for  the  plaintiff  by  the  defendant,  as  sheriff 
of  Los  Angeles  county,  and  which  he  refused  to  pay 
to  the  plaintiff  on  demand.  The  action  is  therefore 
in  the  nature  of  an  action  for  money  had  and  received. 
The  case  was  tried  in  the  court  below  with  a  jury. 
The  plaintiff  had  a  verdict  and  judgment ;  and  from 
the  judgment  and  order  refusing  a  new  trial,  the 
defendant  brings  the  case  before  us  on  appeal.  By 
the  engrossed  statement  on  motion  for  a  new  trial,  it 
appears  that  on  July  nth,  1879,  James  M.  Riley  and 
E.  S.  Rothchild  were  partners  in  trade,  doing  business 
in  the  city  of  Los  Angeles,  under  the  firm  name  of  Riley 
&  Rothchild  ;  on  that  day  several  attachment  suits 
were  commenced  against  the  firm,  and  others  against 


§   202  LEW  ON   PERSONAL  PROPERTY.  2  22 

the  individual  partners  of  the  firm.  Amono-  the  hitter 
were  two  suits  instituted  by  the  plaintiff  in  this  action, 
one  against  James  M.  Riley  and  E.  S,  Rothchild,  and 
the  other  against  Samuel  Rothchild,  E.  S.  Rothchild, 
and  James  M.  Riley.  The  first  was  to  recover  a 
balance  due  upon  a  joint  and  several  promissory  note 
made  by  James  M.  Riley  and  E.  S.  Rothchild  ;  and 
the  second  to  recover  a  balance  due  upon  a  joint  and 
several  promissory  note  made  by  Samuel  Rothchild, 
E.  S.  Rothchild,  and  James  M.  Riley.  It  is  admitted 
that  in  the  original  complaints  filed  in  the  plaintiff's 
actions,  the  defendants  were  not  named  as  partners, 
either  in  the  title  or  body  of  the  complaint,  and  that 
the  writs  of  attachment  issued  in  them  ran  against  the 
individual  defendants,  and  commanded  the  sheriff  to 
attach  and  safely  keep  all  the  property  of  such  defend- 
ants within  his  county,  not  exempt  from  execution,  to 
satisfy  the  plaintiff's  demand,  etc.  The  attachments 
in  all  the  suits  against  the  firm  and  against  the  individ- 
ual members  of  the  firm,  were  issued  on  the  same  day, 
and  were  placed  in  the  hands  of  the  sheriff  for  service 
according  to  law.  The  first  which  came  to  his  hands 
was  an  attachment  issued  in  the  suit  of  L,  &  E.  Emanuel 
against  the  partnership  for  a  partnership  debt.  This 
the  sheriff  levied,  July  12th,  1879,  upon  a  stock  of 
goods,  wares,  and  merchandise — the  partnership  prop- 
erty of  the  firm.  Afterwards,  on  the  same  day, 
defendant  attached  "the  right,  title,  and  interest"  of 
the  individual  partners  in  the  same  stock  of  goods, 
at  the  suit  of  the  plaintiff  in  the  action  against  James 
M.  Riley  and  E.  S.  Rothchild.  Afterwards,  on  the 
same  day,  defendant  again  attached  the  partnership 
property,  at  the  suit  of  one  E.  N.  McDonald,  against 
the  partnership  for  a  partnership  debt.       Afterwards, 


223  LEVY  ON  PERSONAL  PROPERTY.         §  202 

on  the  same  day,  defendant  attached  the  "right,  title, 
and  interest"  of  Samuel  Rothchild,  James  M.  Riley, 
and  E.  S.  Rothchild,  in  the  same  partnership  effects, 
at  the  suit  of  the  plaintiff  in  this  action  against  the  said 
parties.  And,  afterwards,  on  the  same  day,  defendant 
attached  the  same  stock  of  goods  as  the  partnership 
property  of  the  firm,  at  the  suit  of  Walter  &  Co., 
against  the  firm  for  a  firm  debt." 

On  the  2 2d  day  of  July,  1879,  the  plaintiff,  under 
§  432  of  the  Code  of  Civil  Procedure,  amended  the 
complaints  in  its  actions  by  alleging  that  the  defend- 
ants, James  M.  Riley  and  E.  S.  Rothchild,  were  co- 
partners, and  that  the  note  described  in  each  of  the 
complaints  was  given  by  the  defendants  to  secure 
payment  to  the  plaintiff  of  moneys  which  had  been 
loaned  to  them,  and  were  used  in  the  business  of  the 
firm.  But  the  actions  still  ran  against  the  defendants 
as  individuals,  and  judgments  were  entered  against 
them  in  that  capacity.  The  first  judgment  was  en- 
tered by  default  on  August  8th,  1879,  in  favor  of  the 
plaintiff  against  Samuel  Rothchild,  James  M.  Riley, 
and  E.  S.  Rothchild,  for  $583,  and  $26.25  costs;  the 
second,  August  nth,  1879,  in  favor  of  the  plaintiff 
against  James  M,  Riley  and  E.  S.  Rothchild,  for 
$648.90,  and  $22  costs.  Executions  were  issued  on 
these  judgments  August  nth,  1879,  ^^^  were  levied 
by  the  defendant,  at  the  instance  of  the  plaintiff's 
attorney,  upon  "the  interest  of  the  defendant's  in  exe- 
cution," in  the  stock  of  goods,  belonging  to  the  firm  of 
Riley  &  Rothchild,  which  the  defendant  had  seized  and 
held  under  the  writs  of  attachment  in  favor  of  the  part- 
nership creditors  in  the  manner  already  stated.  This 
interest  the  defendant  advertised  to  sell,  at  execution 
sale,  on  the  i8th  of  August,  1879;  but  on  the  day  of 


§  202         LEVY  ON  PERSONAL  PROPERTY.  2  24 

the  sale,  the  plaintiff's  attorney  served  upon  him  the 
following  notice,  viz.: 

"H.  M.  Mitchell,  Sheriff: 

"Commercial  Bank  of  Los  Angeles  v.  Riley  &  Roth- 
child.  In  this  action,  please  postpone  sale  of  stock  of 
defendants  indefinitely,  but  retain  the  levy  of  the  exe- 
cution in  said  case. 

J.  A.  Graves, 

Attorney  for  Plaintiff." 
And  in  obedience  thereto,  the  sale  of  the  defend- 
ants' interest  in  the  partnership  property  was  "indefi- 
nitely postponed."  The  day  after  this  postponement 
judgment  was  entered  in  the  case  of  Walter  &  Co. 
against  the  firm  for  $4,646,  and  $14  costs.  After- 
wards, on  the  27th  of  August,  1879,  judgment  was 
entered  in  the  case  of  McDonald  against  the  firm 
for  $588,  and  $24  costs.  And,  afterwards,  on  the  2 2d 
day  of  September,  1879,  judgment  was  entered  in 
the  case  of  L.  &  E.  Emanuel  against  the  firm  for 
$4631,  and  $775  costs.  Executions  were  regularly 
issued  upon  those  judgments.  By  the  execution  is- 
sued upon  the  first  of  them,  the  stock  of  goods  seized 
and  held  under  the  attachments  against  the  firm  w^as 
levied  upon  and  regularly  sold  October  nth,  1879, 
for  the  sum  of  $8400.  And  out  of  the  proceeds  the 
defendant  satisfied  that  execution  by  applying  to  it  the 
sum  of  $4855.45,  and  applied  the  balance  which  re- 
mained in  his  hands,  viz.:  $3544.55,  in  part  satisfac- 
tion of  the  execution  in  the  case  of  L.  &  E.  Emanuel 
V.  Riley  &  Rothchild.  On  October  20th,  1879,  the 
defendant  returned  upon  the  execution  in  Walter's 
case  that  it  was  "satisfied  in  full;"  that  the  execution 
in  Emanuel's  case  was  "satisfied  in  part;"  that  the 
execution  in   McDonald's  case  was  "unsatisfied,"  be- 


225  LEVY  ON  PERSONAL  PROPERTY.         §  202 

cause,  as  stated  in  the  return,  *'I  have  sold  all  the 
property  of  the  firm  of  Riley  &  Rothchild  under  the 
Walter's  execution,  and  have  been  unable  to  find  any 
other  property  of  said  firm  within  my  county  subject 
to  execution;"  and  that  "the  sale  of  the  individual 
interests  of  the  partnership  in  the  property,  under  the 
executions  issued  upon  the  judgments  in  favor  of  the 
plaintiff,  had  been,  by  order  of  the  plaintiff,  indefi- 
nitely postponed,  and  no  further  proceedings  were 
taken  under  them  when  they  expired  and  were  re- 
turned with  my  doings  indorsed  thereon."  But  four 
days  after  the  sheriff  had  made  his  return,  the  plaintiff 
demanded  of  him  to  apply  the  proceeds  of  the  sale  of 
the  firm  property  to  the  payment  of  its  judgments. 
This  demand  was  refused,  and  on  October  30th,  1879, 
the  defendant  returned  the  executions  in  the  plaintiff's 
cases,  as  follows,  to-wit: 

"  Commercial  Bank  v.  E.  S.  Rothchild  et  al. — I 
hereby  certify  that  I  received  the  annexed  execution 
on  the  I  ith  day  of  August,  1879,  and  on  the  same  day, 
at  the  county  of  Los  Angeles,  by  instruction  of  attorney 
for  plaintiff,  duly  levied  the  same  on  a  certain  stock  of 
goods,  wares  and  merchandise,  at  the  furniture  store 
of  defendants,  in  McDonald  Block,  city  and  county 
of  Los  Angeles,  subject  to  prior  levies,  and  duly  adver- 
tised the  same  for  sale,  at  said  store,  on  Monday,  the 
18th  day  of  August,  1879,  at  ten  o'clock  a.  m.  ;  that  on 
said  day  of  sale,  said  sale  was,  by  order  of  said  attor- 
ney for  plaintiff,  indefinitely  postponed  ;  that  after  due 
and  diligent  search  and  inquiry,  I  am  unable  to  find  in 
this  county  any  property  belonging  to  defendants  not 
exempt  from  execution,  and,  therefore,  return  this 
execution  unsatisfied.  [Signed,] 

October  30th,  1879."  ,H.  M.  Mitchell,  Sheriff, 


I  202         LEVY  ON  PERSONAL  PROPERTY.  2  26 

It  is  contended  on  behalf  of  the  plaintiff,  that  the 
defendant  received  the  proceeds  of  the  sale  of  the 
attached  property  under  the  execution,  in  the  suit  of 
Walter  &  Co.,  for  the  benefit  of  the  attaching  creditors ; 
that  it  was  the  duty  of  the  defendant  to  apply  the  pro- 
ceeds to  the  satisfaction  of  the  executions  in  his  hands, 
in  the  order  in  which  the  attachments  had  been  levied, 
and  that  having-  failed  to  do  so,  he  is  liable  to  the 
plaintiff  in  this  action  for  the  amount  of  its  attachments. 

The  attachment  in  Walter's  case  was  levied  last  and 
satisfied  first,  although  the  plaintiff's  attachments  were 
levied  before  it ;  but  the  levies  were  upon  different 
kinds  of  property.  The  one  was  upon  partnership 
property,  by  partnership  creditors,  in  an  action  against 
the  nrm,  for  a  partnership  debt;  and  the  other  was 
upon  the  interest  of  the  partners  in  the  partnership 
property,  by  individual  creditors,  in  an  action  against 
the  partners,  in  their  individual  capacities  for  personal 
debts.  Both  levies  were  valid  ;  for  the  interests  of 
partners  in  partnership  property  are  subject  to  levy  and 
sale  for  their  debts.  Such  was  the  levy  made  by  the 
defendant  for  the  plaintiff,  and  there  is  no  question 
that  if  there  had  been  no  prior  or  subsequent  attach- 
ments levied  upon  the  partnership  property  by  partner- 
ship creditors,  for  debts  of  the  firm,  it  would  have  been 
the  duty  of  the  defendant  to  have  seized  the  entire 
property,  under  the  levy  of  the  partners'  interest 
therein,  and  delivered  it  to  a  purchaser  on  execution 
sale.  (Phillips  v.  Cook,  24  Wend.  389.)  But  the 
right  of  the  sheriff  to  seize  and  deliver  partnership 
property  under  an  attachment  of  the  individual  interests 
of  the  partners  herein,  is  only  incidental  to  the  right  of 
the  attaching  creditor  or  purchaser  to  reach  the  inter- 
ests of  the  members  of  the  partnership,  and  is  to  be 


22  7  LEVY  ON  PERSONAL  I'ROI'EkTV.  §   202 

•exercised  only  as  means  to  that  end.  (Atkins  v.  Saxton, 
']']  N.  Y.  195.)  And  this  right  of  the  attaching-  credit- 
or or  purchaser  to  reach  the  interest  attached,  is  an 
equitable  one,  which  can  be  exercised  only  through 
the  form  of  a  proceeding  for  an  accounting  between 
the  partners  and  a  setdement  of  the  partnership  debts. 
(Burrall  v.  Acker,  23  Wend.  606.)  Until  the  affairs 
of  the  co-partnership  are  wound  up  and  setded,  the 
claim  of  a  partner  is,  stricdy  speaking,  merely  equit- 
able, for,  until  then,  no  action  can,  in  general,  be  main- 
tained at  law  by  one  partner  against  the  other  for  a 
portion  of  the  profits,  etc.  (Story' s  Law  of  Part.  p.  3  2  2 . ) 
And  after  judgment,  the  accounting  and  settlement 
may  be  had  by  the  attaching  creditor,  or  the  sheriff, 
before  execution  sale,  or  after  sale,  by  the  purchaser 
of  the  individual  interests  of  the  partners.  "  By  the 
seizure  of  the  partnership  effects,  the  sheriff  acquires  a 
special  property  in  the  goods  seized  ;  and  the  judg- 
ment creditor  himself  may — and  the  sheriff,  also,  with 
the  consent  of  the  judgment  creditor — file  a  bill  against 
the  other  partners  for  the  ascertainment  of  the  quan- 
tity of  that  interest,  before  any  sale  is  actually  made 
under  the  execution.  The  judgment  creditor,  however, 
is  not  bound,  if  he  does  not  choose,  to  wait  until  such 
interest  is  so  ascertained,  but  he  may  require  the 
sheriff  immediately  to  proceed  to  a  sale,  which  order 
the  sheriff  is  bound  by  law  to  obey.  In  the  event  of  a 
sale,  the  purchaser  at  the  sale  is  substituted  to  the 
rights  of  the  execution  partner  quoad  the  property  sold, 
and  becomes  a  tenant  in  common  thereof;  and  he  may 
file  a  bill  to  ascertain  the  quantity  of  interest  which  he 
has  acquired  by  the  sale."  (Story  on  Part,  §  263  ; 
Jones  V.  Thompson,  12  Cal.  199;  Robinson  z\  Tevis, 
38  Id.  611.) 


§  202         LEVY  ON  PERSONAL  PROPERTY.  228 

The  plaintiff's  position  as  to  the  proceeds  of  the 
sale  of  the  partnership  property,  under  the  execution 
in  the  case  of  Walter  &  Co.  against  the  firm  of  Riley 
&  Rothchild,  was,  therefore,  simpl)-  tliis:  "It  had  ac- 
quired by  the  levy  of  its  attachments  and  the  execu- 
tion issued  upon  its  judgments,  a  lien  upon  the  indi- 
vidual interests  of  the  firm  in  the  firm  property.  It 
could  have  enforced  this  lien  by  a  sale  of  the  attached 
interests,  or  after  the  sale — if  it  had  purchased  at  the 
sale — by  an  action  in  equity  to  ascertain  the  quantity 
of  the  interest,  if  any,  remaining  after  the  settlement 
of  the  partnership  affairs  and  the  payment  of  its  debts. 
But  as  a  lien-holder,  the  plaintiff  made  no  use  of  its 
rights  or  its  remedies.  It  did  not  command  an  action 
to  ascertain  whether  there  would  be  a  surplus  after 
the  settlement  of  the  partnership.  It  did  not  even 
sell  the  'interests'  upon  which  it  had  levied.  By  its 
own  orders  to  the  sheriff,  the  sale  thereof  was  indefi- 
nitely postponed.  The  rights  of  the  plaintiff  were, 
therefore,  by  its  own  involuntary  act,  placed  in  abey- 
ance ;  and  when  the  defendant  was  called  upon  to  sell 
the  partnership  property  under  the  executions  in  favor 
of  the  partnership  creditors,  it  was  his  duty  to  obey, 
and  to  apply  the  proceeds  of  the  sale  toward  the 
satisfaction  of  the  judgments  against  the  firm.  If, 
after  the  performance  of  that  duty,  there  remained  in 
his  hands  a  surplus,  the  plaintiff  might  have  been  en- 
titled to  have  it  applied  towards  the  satisfaction  of  its 
executions;  for  though  its  rights  were  in  abeyance, 
they  were  not  forfeited ;  they  existed  and  were  en- 
forceable, according  to  law,  at  any  time  after  the  sale 
of  the  partnership  property  and  the  payment  of  the 
partnership  debts  against  any  surplus  which  might 
remain.     But   the   proceeds  of  the  sale  were  insuffi 


2  29  LKVV  ON   PERSONAL  PROI'KRTV.  §  202 

cient  to  satisfy  the  executions,  in  the  hands  of  the  de- 
fendant, against  the  firm ;  there  was  therefore  no 
surplus  to  be  appHed  towards  the  satisfaction  of  the 
plaintiff's  executions.  The  plaintiff  was,  therefore,  not 
in  a  position  to  maintain  an  action  in  the  nature  of 
an  action  for  money  had  and  received  against  the  de- 
fendant, 'To  enable  the  plaintiff  to  recover,'  says 
Sawyer,  C.  J.,  in  Robinson  v.  Tevis,  supra,  'the  bur- 
den is  on  him  to  show  that  there  was  a  surplus,  and 
the  amount  of  his  share  of  the  surplus.  '••'  '■•-  '''• 
Till  this  is  done,  and  his  share  set  off  and  appro- 
priated to  him,  he  is  no  more  entitled  to  the  posses- 
sion or  control  of  the  fund  than  the  partners,'  Judg- 
ment and  order  denying  a  new  trial  reversed,  and 
cause  remanded," 

Some  of  the  questions  relating  to  the  duties  of  sher- 
iffs in  levying  upon  a  harvested  crop  of  grain,  part  of 
which  is  partnership  property,  and  a  part  belonging  to 
a  stranger  to  the  writ,  and  upon  a  portion  of  which 
there  is  a  chattel  mortgage,  are  so  plainly  elucidated 
in  the  opinion  of  the  court,  in  the  case  of  Sheehy  v. 
Graves  (58  Cal.  149),  that  the  entire  opinion  of  the 
court  is  herewith  given  : 

"This  is  an  action  against  the  defendant.  Graves,  as 
sheriff,  and  the  sureties  on  his  official  bond,  for  a 
breach  of  such  bond.  The  cause  was  tried  by  the 
court,  a  jury  having  been  waived,  and  judgment  passed 
for  the  defendants.  Plaintiff  moved  for  a  new  trial, 
which  was  denied,  and  he  appealed  from  the  judgment 
and  order  denying  a  new  trial. 

"It  is  averred  in  the  complaint,  that  on  the  23rd  of 
August,  1876,  the  plaintiff  commenced  an  action  in  the 
District  Court  for  Monterey  county,  against  one  Darius 


§  202         LEVY  ON  PERSONAL  PROPERTY.  230' 

Finch  and  Charles  Shinn,  for  the  recovery  of  about 
$850  ;  that  the  defendants  having  been  served  with 
summons,  failed  to  answer,  and  judgment  by  default 
was,  on  the  23rd  of  October,  1876,  entered  against 
them,  in  favor  of  plaintiff,  for  $846  and  costs  ;  that  on 
the  day  the  action  was  commenced,  a  writ  of  attach- 
ment was  regularly  issued,  which  came  to  the  hands  of 
defendant,  Graves,  sheriff,  as  aforesaid,  and  was  by  him, 
on  the  24th  of  August,  1876,  levied  on  certain  wheat 
in  sheaf  and  barley  in  stack,  part  of  same  being  on 
Sheehy's  land,  and  the  other  portion  on  the  land  of 
Rowe,  which  had  been  rented  by  Finch  ;  that  the  wheat 
and  barley  seized  on  the  Sheehy  tract  was  the  property 
of  Finch  &  Shinn,  and  that  on  Rowe's  land,  was  the 
property  of  Finch  ;  that  the  property  so  levied  on  was, 
when  seized  under  the  writ,  more  than  sufficient  in 
value,  after  deductino-  all  costs,  charg-es,  and  expenses 
of  every  kind  for  harvesting  and  otherwise,  to  pay  off 
and  satisfy  the  claims  of  the  plaintiff  in  said  action,  and 
the  judgment  therein  recovered  ;  that  said  property 
was  never  released  from  the  attachment,  and  was  not 
exempt  from  execution  :  that  after  the  recovery  of  the 
judgment  of  23rd  of  October,  1876,  a  writ  of  execution 
was  issued  on  said  judgment,  and  came  to  the  hands 
of  the  sheriff.  Graves,  on  the  3rd  of  November,  1876. 
The  mandate  of  this  writ  of  execution  was  in  the  usual 
form  required  by  law.  That  the  property  attached  was  in 
Monterey  county,  and  was  the  personal  property  of  the 
debtors  at  the  time  it  was  attached.  It  is  further  alleged 
'that  the  sheriff  was  in  duty  bound  to  hold  and  retain 
the  attached  property  as  security  for  the  judgment  and 
execution  issued  thereon,  and  to  make  out  of  the  same 
the  moneys  by  said  writ  of  execution  commanded  to  be 
made ;  that  said   sheriff  has  disregarded  his  said  duty 


231  LEVY  ON  PERSONAL  PROPERTY.         §  202 

and  has  failed  and  neglected,  without  the  authority, 
consent,  or  other  interference  of  the  plaintiff,  to  collect 
said  moneys,  or  make  due  return  thereof  as  com- 
manded by  said  writ,  except  the  sum  of  $319,  gold 
coin,  as  aforesaid,  but  no  more,  which  said  sum  was 
paid  to  this  plaintiff  on  or  about  December  ist,  1876  ; 
that  said  sheriff,  on  January  8th,  1877,  made  return  of 
said  writ  of  execution,  partly  paid  and  satisfied,  to  wit : 
The  sum  of  $319,  as  aforesaid,  but  not  further  or 
otherwise,  and  has  wholly  and  wrongfully  failed  and 
neglected  to  collect  and  make  return  of  the  moneys,  as 
commanded  and  in  duty  bound  under  said  writ,  for  the 
satisfaction  of  the  balance  of  said  judgment,  interest 
and  costs  ;  that  said  balance  is  the  sum  of  $582.06, 
and  legal  interest  thereon  from  January  ist,  1877,' 
and  no  part  of  the  sum  has  been  paid  or  in  any  way 
satisfied.  It  is  also  averred  that  the  judgment  debtors. 
Finch  &  Shinn,  had  no  property,  real  or  personal,  at 
or  within  the  elates  mentioned  in  the  complaint,  in  said 
Monterey  county,  or  elsewhere,  except  the  property 
attached."  The  decision  of  the  (lower)  court  is  as 
follows  : 

"I.  In  the  summer  of  1876,  two  parties,  named 
Darius  Finch  and Shinn,  were  engaged  as  part- 
ners in  farming  in  the  county  of  Monterey,  and  rented 

from  plaintiff,  T.  Sheehy,  for  that  season, acres  of 

land. 

"Besides  the  land  so  rented  and  worked  by  Finch 

&  Shinn,  as  partners.  Finch  rented  and  farmed 

upon  his  individual  account  a  tract  of  land  from 

Rowe. 

"2.  Upon  Finch's  interest  and  growing  crop  upon 
the  Rowe  place,  one  Mooney  had  a  mortgage.  By 
arrangement  of  Finch  with   H.  Jackson,  Jackson,   in 


§   202  i.EVV  UX   PERSONAL  PROl'ERTV.  232 

August,  1876,  paid  off  the  Mooney  mortgage  and 
then  took  a  new  mortgage  from  Finch  for  the  amount 
paid  Mooney,  and  also  for  a  debt  due  to  himself  from 
Finch,  and  also  for  future  advances  to  be  made  by 
Jackson  to  Finch.  This  mortgage  was  for  about 
^2200,  and  was  executed  upon  the  21st  of  August, 
1876,  and  was  forthwith  recorded  in  the  proper  records 
of  Monterey  county. 

"At  the  date  of  the  execution  of  this  mort^aL^'e  most 
of  the  grain  was  cut  upon  both  the  Rowe  and  Sheehy 
places,  and  the  greater  part  of  it  had  then  been  stacked. 

"Jackson  upon  receiving  the  mortgage,  went  upon 
both  places  and  examined  the  crop,  and  placed  a  man 
in  charge  of  the  crop.  The  Rowe  and  Sheehy  fields 
were  about  one  and  a  half  miles  distant  from  each 
other. 

"3.  Upon  the  24th  day  of  August,  1876,  Timothy 
Sheehy  commenced  an  action  against  'Finch  &  Shinn,' 
and  filed  the  affidavit  and  undertaking  necessary  to 
authorize  an  attachment,  and  an  attachment  issued  in 
said  cause,  and  was  by  the  defendant  as  sheriff  of 
Monterey  county,  executed  by  levying  upon  the  in- 
terest of  Finch  &  Shinn,'  or  either  of  them,  in  the  two 
parcels  of  land  above  described,  and  in  the  crop  grow- 
ing or  being  upon  the  same. 

"At  the  time  this  levy  was  made,  parties  represent- 
ing 'Jackson' were  in  the  possession  and  occupation 
of  both  fields,  and  the  sheriff  was  by  them  informed 
that  Jackson  claimed  an  interest  in  these  crops. 

"4.  After  the  levy  of  this  attachment,  Sheehy  prose- 
cuted said  action  to  final  judgment,  and  recovered  a 
judgment  against  Finch  &  Shinn,  October  23d,  1876, 
for  $864.65,  which  judgment  was  and  is  in  full  force 
and  only  so  far  satisfied  as  is  hereafter  set  forth. 


^33  LEVY  ON  PERSONAL  PROl'ERTV.  §   202 

"5.  After  the  levy  of  said  attachment.  'Jackson' 
proceeded  to  thresh  said  crop,  and  hired  competent 
and  suitable  persons,  and  made  the  most  advantageous 
terms  practicable  for  the  threshing-  and  marketing  of 
said  crop. 

"There  was  threshed  and  sacked  upon  said  two 
tracts  the  following  amounts  and  character  of  grain: 

"  '.Upon  the  Rowe  place — wheat,  77,500  pounds ;  bar- 
ley, 19,072  pounds.  Upon  the  Sheehy  place — wheat, 
64,098  pounds ;  Chevalier  barley,  23, 140  pounds  ;  com- 
mon barley,  21,625  pounds.  There  was  expended  by 
Jackson  in  harvesting  the  crop  upon  the  two  places, 
$619.24.' 

'Tt  was  agreed  between  Sheehy,  the  sheriff,  and 
Jackson,  that  the  latter  should  thresh  and  sack  the 
grain,  and  that  whatever  belonged  to  the  'Shinn'  in- 
terest should  be  delivered  to  the  sheriff  upon  the 
Sheehy  attachment.  After  the  harvesting  and  mar- 
keting of  the  crop  there  was  paid  to  the  sheriff  by 
*  Jackson'  $319,  as  the  part  belonging  to  'Shinn,'  and 
this  was  by  the  sheriff  applied  upon  the  'Sheehy'  at- 
tachment and  execution,  there  remaining  unsatisfied 
of  the  Sheehy  judgment,  above  described,  about 
$582.50,  together  with  legal  interest  from  the  date  of 
its  rendition. 

"6.  Besides  the  expenditures  named  by  Jackson  in 
securing  this  crop,  he  was  obliged  by  the  terms  of  the 
lease  from  'Rowe'  to  pay  the  rent  upon  the  Rowe 
tract,  and  did  so.     This  amounted  to  $400. 

"7.  After  the  sale  and  application  of  all  the  pro- 
ceeds of  the  crop  grown  upon  the  Rowe  and  Sheehy 
places,  the  whole  of  said  proceeds  did  not  equal  the 
advances  made  by  and  mortgaged  to  Jackson,  and  the 
■costs  incurred  b)'  him  in  harvesting  the  crop,  b}'  the 
sum  of  about  $300. 


§  202         LEVY  ON  PERSONAL  PROPERTY.  234 

"All  these  costs  and  expenses  were  paid  and  ad- 
vanced by  Jackson  personally. 

"8.  I  find  that  the  defendant  used  due  and  proper 
diligence  in  executing  his  writ  in  the  Sheehy  case, 
and  that  all  the  money  and  [)roperty  available,  as 
applicable  from  said  crops,  or  from  said  attachment  and 
execution,  was  by  him  made  and  applied  on  the  same. 

"Judgment  for  the  defendant  for  costs  of  suit.'*' 

The  only  points  to  which  our  attention  is  called  are 
the  insufficiency  of  the  evidence  to  justify  the  decision 
of  the  court,  and  that  it  is  against  law.  Is  not  the 
decision  against  law  ?  It  is  found  by  the  court,  that, 
"in  the  summer  of  1876,  Finch  &  Shinn  were  engaged 
as  partners  in  farming  in  the  county  of  Monterey,  and 

rented  from  plaintiff,  Sheehy,   for   that   season,  

acres  of  land.  Then  the  w^heat  and  barley  that  were 
grown  on  this  place  were  partnership  property.  This 
was  the  grain  that  was  levied  on  by  the  plaintiff,  under 
the  writ  of  attachment.  This  levy  was  made  on  the 
24th  of  August,  1876.  It  is  found  that  it  (the  levy) 
was  made  upon  the  interest  of  Finch  &  Shinn  in  the 
two  parcels  of  land  (Sheehy's  and  Rowe's),  and  the 
crop  growing  on  the  same ;  that  Jackson's  mortgage 
was  executed  on  the  21st  of  August,  1876,  and  was 
forthwith  properly  recorded ;  that  at  the  date  of  the 
execution  of  this  morto;acre,  most  of  the  erain  was  cut 
upon  both  places,  and  the  greater  part  of  it  had  been 
stacked ;  that  Jackson,  upon  receiving  the  mortgage, 
went  on  both  places  and  examined  the  crop,  and 
placed  a  man  in  charge  of  the  crop  ;  that  at  the  time 
of  the  levy  of  the  attachment,  parties  representing 
Jackson  were  in  possession  and  occupation  of  both 
fields,  and  the  sheriff  was  by  them  informed  that 
Jackson  claimed  an  interest  in  these  crops. 


235  LEVY  ON  PERSONAL  PROPERTY.        §  202 

"It  is  averred  in  the  complaint,  and  not  denied  in  the 
answer,  that  judgment  was  recovered  by  plaintiff  in 
the  action  of  Sheehy  against  Finch  &  Shinn,  on  the 
23rd  of  October,  1876,  for  ^864.65  ;  that  on  this  judg- 
ment a  writ  of  execution  was  sued  out,  which  came  to 
the  sheriff's  hands  on  the  3rd  of  November,  1876.  It 
is  further  found  that  it  was  agreed  between  the  plaintiff, 
Sheehy,  the  sheriff,  and  Jackson,  that  the  latter  should 
thresh  and  sack  the  grain  and  deliver  to  the  sheriff 
whatever  belonged  to  the  Shinn  interest  under  the 
attachment. 

"It  appears  from  the  findings,  that  Jackson  did  thresh 
and  sack  the  crop,  delivered  none  of  the  grain  to  the 
sheriff,  but  sold  it  himself  and  paid  to  the  sheriff  $319, 
as  the  part  belonging  to  the  Shinn  interest,  which  was 
applied  by  the  sheriff  upon  the  execution,  leaving  a 
balance  of  the  judgment  unsatisfied,  amounting  to 
$582.50,  with  interest  from  the  date  of  its  rendition. 
The  amount  of  grain  threshed  and  sacked  Is  found, 
but  its  value  is  not. 

"It  was  the  duty  of  the  sheriff  to  have  taken  possession 
of  the  Shinn  Interest,  and  have  sold  It  in  the  manner 
required  by  law.  Jackson  had  no  mortgage  on  the 
Shinn  interest,  and  the  sheriff  should  have  looked 
after  that  interest,  and  taken  possession  of  It  when 
threshed  and  sacked,  under  the  facts  as  found  by  the 
court.  The  sheriff  had  no  right  to  sell  at  private  sale, 
nor  to  authorize  any  one  else  to  do  so.  (Code  Civ. 
Proc.  §  691-694.)  His  duty  was  to  give  notice  of  the 
sale  of  such  property,  by  posting  written  notices  thereof 
In  three  public  places  In  the  township  or  city  where 
the  sale  is  to  take  place,  for  not  less  than  five  nor  more 
than  ten  days.  He  Is  liable  to  a  severe  penalty  for 
selling  without  such  notice.     He  Is  required  to  sell  tO' 


§   202  LEW  OX  PERSONAL  PROPERTY.  236 

the  highest  bidder  at  auction,  between  the  liours 
of  nine  in  the  mornino-  and  five  in  the  afternoon. 
'  When  the  sale  is  of  personal  property,  capable  of 
manual  delivery  (as  in  this  case)  it  must  be  within 
view  of  those  who  attend  the  sale,  and  be  sold  in  such 
parcels  as  are  likely  to  bring-  the  highest  price.'  It 
makes  no  difference  that  Jackson  obtained  the  highest 
price  for  the  grain.  He  had  no  claim  on  it.  The  only 
figure  it  should  have  cut  in  the  case,  would  be  that  the 
amount  realized,  when  paid  over  to  the  plaintiff,  might 
be  allowed  to  go  in  reduction  of  damages.  The  con- 
clusion of  law  drawn  by  the  court  was  not  a  proper 
deduction  from  the  facts  found.  The  sheriff  did  not 
use  due  and  proper  diligence  in  executing  the  writ  of 
execution  in  the  Sheehy  case,  but,  on  the  contrary, 
was  in  default.  The  default  comes  within  the  breach 
of  the  bond  assigned,  and  the  breach  is  fully  made  out 
by  the  testimony.  The  decision  is  against  law,  and 
the  judgment  and  order  should  be  reversed,  and  the 
cause  remanded  for  a  new  trial. 

"We  have  considered  this  case  upon  the  findings  of 
the  court,  and  on  these,  as  we  have  seen,  the  judg- 
ment and  order  must  be  reserved.  But  we  are  also 
of  opinion  that  some  of  the  findings  on  material  mat- 
ters are  not  sustained  by  the  evidence. 

"There  was  no  evidence  to  sustain  the  finding  that 
the  plaintiff  agreed  with  the  sheriff  and  Jackson  that 
the  latter  should  thresh  and  sack  the  grrain.  It  is 
clear  from  the  testimony  that  the  plaintiff  had  nothing 
to  do  with  any  such  agreement. 

"The  evidence  does  not  sustain  the  finding  that  at 
the  date  of  the  mortgage  to  Jackson  most  of  the  grain 
was  cut  on  both  the  Rowe  and  Sheehy  places,  and  the 
greater  part  of  it   had  been  stacked.     The  evidence 


237  I^I^VY  ON  PERSONAL  PROPERTY.         §  202 

shows  that  all  the  grain  had  been  cut  and  was  in  sheaf 
and  stack.  If  it  was  not  cut,  it  did  not  pass  to  Jack- 
son under  his  mortgage  by  its  terms,  for  that  mort- 
gage only  transferred  to  Jackson  'all  the  wheat  and 
barley  now  in  sheafs  and  stacks,  grown  and  raised 
the  present  season  and  now  being'  on  the  two  places, 
describing  them.  If  it  was  as  found  by  the  court,  the 
default  of  the  sheriff  was  greater,  for  it  was  his  duty 
to  take  possession  of  that  not  cut — not  in  sheaf  and 
stack. 

"The  case  demands  some  other  observations.  If  the 
crop  raised  on  the  Sheehy  place  was  partnership 
property,  what  right  had  Jackson  to  take  possession 
of  it  to  the  exclusion  of  Shinn,  the  partner  from  whom 
he  had  no  mortgage?  As  against  Jackson,  who  had 
a  mortgage  only  of  the  interest  of  Finch,  which  inter- 
est could  only  be  determined  after  a  settlement  of 
the  accounts  of  the  partnership,  where  it  might  have 
turned  out  that  Shinn  was  entitled  to  the  whole  (Civil 
Code,  §  2405),  Shinn  had  a  right  to  the  possession, 
and  under  these  circumstances  it  was  the  duty  of  the 
sheriff,  having  in  his  hands  the  execution  against 
both  the  partners,  to  take  possession  of  all  the  grain 
on  the  Sheehy  place.  Shinn  could  not  be  deprived 
of  the  possession  of  the  whole  by  the  assignment  by 
his  partner  of  his  interest.  The  sheriff  neglected 
his  duty  and  was  guilty  of  a  breach  of  his  bond  as 
set  forth  in  the  complaint,  in  not  taking  possession  of 
the  whole  grain,  at  least  on  the  Sheehy  place,  as  he 
was  ordered  to  do.  The  judgment  and  order  are 
reversed  and  cause  remanded." 

In  an  action  a^-ainst  a  sheriff  for  seizinof  and  sellino- 
certain  personal  property,  alleged  to  belong  to  plaintiff, 
under  an  execution  as^ainst  one  Teal,  it  beine  averred 


§  202         LEVY  ON  PERSONAL  PROPERTY.  238 

in  the  answer  tliat  the  property  belong-ed  to  Teal : 
Held,  that  evidence  tending-  to  prove  that  it  was  the 
partnership  property  of  Teal  and  plaintiff  was  proper, 
and  that  if  they  were  partners,  and  as  such,  owned 
the  property,  plaintiff  could  not  recover.  (Hughes  v. 
Boring,  sheriff,  i6  Cal.  82.) 

Partnership  property  can  be  seized  under  an  execu- 
tion against  one  of  the  partners,  for  his  individual 
debt,  and  sold ;  but  the  interest  which  passes  by  the 
sale  is  only  the  interest  of  the  debtor  partner  in  the 
residuum  of  the  partnership  property,  after  the  settle- 
ment of  the  partnership  debts.  (Robinson  v.  Tevis, 
38  Cal.  611.) 

Where  V.,  an  owner  of  land,  makes  a  verbal  agree- 
ment with  B. — which  they  term  a  lease — by  which  B. 
is  to  have  the  land  for  three  years ;  V.  to  furnish  the 
farming  implements,  wagons,  horses,  and  his  share  of 
sacks ;  B.  to  work  the  land,  and  give  V.  for  the  use 
of  it  one-third  of  the  grain  raised,  after  it  is  put  in 
sacks,  free  from  the  expense  of  threshing:  Held,  that 
this  agreement  is  not  a  lease,  but  a  contract  for 
working  the  farm  upon  shares,  and  that  the  parties 
are  tenants  in  common  of  the  grain,  until  a  division  be 
made.  Held,  further,  that  a  sheriff  having  an  attach- 
ment against  V.  may  levy  on  his  interest  in  the  grain ; 
and  to  effect  this,  may  take  and  detain  possession  of 
the  entire  quantity  of  grain ;  but  he  can  sell  under 
the  execution  on  the  judgment  that  may  be  recov- 
ered in  the  action  only  the  undivided  one-third  inter- 
est of  V. — the  purchaser  at  the  sale  becoming  tenant 
in  common  with  B.      (Bernal  v.  Hovious,  17  Cal.  541. 

Where  one  partner  bona  fide,  sold  the  partnership 
property  to  satisfy  his  individual  indebtedness,  and  in  an 
.action  of  replevin  by  the  purchaser  against  a  creditor  of 


239  LEVY  ON  PERSONAL  PROPERTY.         §  203 

the  firm  who  has  attached  the  property,  after  the  sale 
and  dehvery,  as  the  firm  property,  and  for  a  firm  debt, 
the  court  properly  rendered  a  judgment  for  the  pur- 
chaser; and  it  will  be  presumed  in  support  of  the 
judgment,  that  the  court  below  found  it  as  a  fact  that 
the  other  partner  consented  to,  and  authorized  the 
sale.  (Stokes  v.  Stevens,  40  Cal.  391.)  So  long  as  the 
legal  title  of  the  partnership  property  remains  in  the  co- 
partners, a  creditor  of  the  firm  may  pursue  his  remedy 
arainst  it,  in  an  action  at  law,  in  the  same  manner  as 
aofainst  an  individual  debtor.  But  if  the  leeal  title 
has  been  conveyed  to  a  third  person  bona  Jidt\  the 
creditor  can  pursue  the  property  only  by  a  bill  in 
equity  to  marshal  the  assets  and  enforce  his  equitable 
lien. 

The  filing  of  a  bill  by  one  partner  against  his  co- 
partners for  a  dissolution  and  account,  and  praying 
for  an  injunction  and  receiver,  and  an  appointment  of 
a  receiver-  by  the  court,  does  not  prevent  a  creditor 
from  proceeding  by  attachment,  and  gaining  a  priority 
over  other  creditors,  until  a  final  decree  of  dissolution 
and  order  of  distribution.      (Adams  v.  Woods,  9  Cal. 

24-) 

Idem.     Funds  in  the  hands  of  a  receiver,  in  a  suit 

for  dissolution,  are  therefore  subject  to  attachment  at 
any  time  before  a  final  decree  of  dissolution  and  dis- 
tribution. 

§  203.  Garnishment  and  Demand. — The  method 
of  serving  a  garnishment  is  explained  elsewhere,  under 
the  title  of  garnishments.  When  a  garnishment  is  served 
under  an  execution,  a  demand  should  be  made  upon 
the  person  served  for  the  delivery  to  the  sheriff  of  any 
money  or  other  property  belonging  or  owing  to  the 


§§  204,  205       LEW  ON  PERSONAL  PROPERTY.  24O 

defendant,  in  the  possession  or  under  the  control  of 
the  person  served. 

§  204.  Assignee  's  Lien. — A  garnishment  does 
not  give  the  creditor  precedence  over  assignees  of  the 
fund,  when  the  assignment  is  prior  to  the  service  of 
the  garnishment.      (WalHng  £'.  Miller,  15  Cal.  39.) 

Plaindff  delivered  to  defendants  gold  dust,  to  be  by 
them  forwarded  to  San  PVancisco,  to  be  there  coined 
and  returned.  The  dust  belonged  to  five  persons, 
partners  in  mining,  of  whom  plaintiff  and  one  Coulter 
were  two.  While  the  dust  was  in  the  hands  of  defend- 
ants, Coulter  sold  to  plaintiff,  for  a  valuable  considera- 
tion, his  interest  in  it,  and  gave  a  receipt  evidencing 
the  sale.  Defendants,  after  this,  received  coin  made 
of  the  dust,  and  a  creditor  of  Coulter  attached  the 
coin,  by  garnisheeing  defendants.  Defendants  had  no 
notice  of  the  sale  to  plaindff  until  the  day  after  the 
attachment,  when  plaintiff  demanded  Coulter's  share 
of  the  coin  :  Held,  that  plaintiff  was  endded  to  the 
coin  ;  that  the  dust  in  defendant's  hands  was  in  the 
construcUve  possession  of  all  the  five  owners.  C. 
having  no  exclusive  interest  in  any  part  until  it  was 
converted  into  coin,  and  divided  among  the  owners  ; 
that  C.'s  right  in  the  dust  was  a  chose  in  action,  which 
he  could  assign  by  order  in  favor  of  purchaser  or 
assignee;  and  after  such  order,  neither  C.  nor  his 
creditors  could  claim  any  right  to  the  money  ;  that  the 
Statute  of  Frauds  has  no  application  to  a  case  like  this. 
(WalHngz/.  Miller,  15  Cal.  39.) 

§  205.  How  Writ  is  Executed. — The  sheriff 
must  execute  the  writ  against  the  property  of  the 
judgment  debtor,  by  levying  on  a  sufficient  amount  of 


241  LEVY  ON  PERSONAL  PROl'ERTY.         §  205 

property,  if  there  be  sufficient,  collecting  or  selling  the 
things  in  action,  and  selling  the  other  property,  and 
paying  to  the  plaintiff  or  his  attorney  so  much  of  the 
proceeds  as  will  satisfy  the  judgment.  Any  excess  in 
the  proceeds  over  the  judgment  and  accruing  costs 
must  be  returned  to  the  judgment  debtor,  unless 
otherwise  directed  by  the  judgment  or  order  of  the 
court.  When  there  is  more  property  of  the  judgment 
debtor  than  is  sufficient  to  satisfy  the  judgment  and 
accruing  costs  within  the  view  of  the  sheriff,  he  must 
levy  only  on  such  part  of  the  property  as  the  judgment 
debtor  may  indicate,  if  the  property  indicated  be  amply 
sufficient  to  satisfy  the  judgment  and  costs.  (§  691, 
C.  C.  P.) 

An  execution  will  not  justify  breaking  into  a  house. 
But  after  entrance  has  been  lawfully  effected,  through 
an  outside  door,  the  officer  may,  for  the  purpose  of 
levying  upon  property,  break  through  inside  doors  to 
get  at  the  property. 

A  levy  made  at  any  time  before  the  return  day  of  the 
writ  is  good,  but  a  levy  made  after  the  return  day  will  not 
be  good,  unless  the  delay  has  been  caused  by  a  stay  of 
proceedings.  Where  property  has  been  levied  upon 
and  there  is  not  sufficient  time  between  the  date  of 
the  levy  and  the  return  day,  the  officer  may,  never- 
theless, proceed  to  advertise  and  sell  the  property 
under  the  writ,  and  the  sale  will  be  valid. 

When  a  stay  of  proceedings  is  ordered,  the  time  of 
the  stay  is  not  to  be  computed  as  part  of  the  time  in 
which  the  writ  runs  to  the  return  day.  That  is,  if  a 
writ  is  made  returnable  within  sixty  days,  and  a  stay 
of  proceedings  is  granted  for  twenty  days,  the  writ 
will  have  eighty  days  to  run  before  it  must  be  re- 
turned. 

16 


§§  206,  207   LEVY  ON  PERSONAL  PROPERTY.  242 

The  court  has  no  power  to  make  an  order  directing 
a  sheriff  to  enforce  an  execution  by  levying  on  a  par- 
ticular piece  of  property.  (Fraser  v.  Thrift,  50  Cal. 
476.) 

§  206.  Penalty  for  Refusing  to  Levy. — If  the 
sheriff  to  whom  a  writ  of  execution  is  delivered  neg- 
lects or  refuses,  after  being  required  by  the  creditor 
or  his  attorney,  to  levy  upon  or  sell  any  property  of 
the  party  charged  in  the  writ  which  is  liable  to  be 
levied  upon  and  sold,  he  is  liable  to  the  creditor  for 
the  value  of  such  property.  If  he  neglects  or  refuses 
to  pay  over  on  demand,  to  the  person  entitled  thereto, 
any  money  which  may  come  into  his  hands  by  virtue 
of  his  office  (after  deducting  his  legal  fees),  the  amount 
thereof,  with  twenty-five  per  cent,  damages  and  in- 
terest at  the  rate  of  ten  per  cent,  per  month  from  the 
time  of  demand,  may  be  recovered  by  such  person. 
(§§  4180,  41 8 1,  Political  Code.) 

§  207.  Senior  and  Junior  Writs. — When  an  offi- 
cer has  levied  upon  property,  he  may  hold  the  same 
under  subsequent  writs  that  may  come  into  his  hands, 
so  long  as  the  first  levy  remains  thereon.  The  receipt 
of  subsequent  writs  operate  as  constructive  levies 
upon  the  goods  taken  under  the  prior  writ. 

If  a  second  execution  be  delivered  to  a  sheriff  after 
he  has  the  defendant's  goods  in  possession  under  the 
prior  execution  of  another,  the  goods  are  bound  by 
the  second  execution,  subject  to  the  first  execution. 

Where  A.  and  B.  issue  separate  executions,  and 
both  are  levied  upon  the  same  property  at  different 
times,  and  the  prior  execution  of  A.  is  set  aside,  B. 
is  entided  to  be  paid  as  if  he  were  the  sole  execution 
creditor. 


243  LEVY  ON  PERSONAL  PROPERTY.         §  20/ 

When  a  second  execution  is  levied  upon  certain 
goods,  and  the  proceeds  afterwards  exhausted  by  the 
first  execution,  the  sheriff's  return  of  nulla  bona  upon 
the  second  execution  is  proper. 

Where  there  are  several  writs  of  attachment  levied 
upon  property,  the  first  writ  levied  holds  the  property 
to  satisfy  the  judgment  that  may  be  recovered  under 
that  writ ;  and  when  an  execution  is  issued  against  the 
property,  whether  it  be  in  the  case  of  the  first  attach- 
ment, or  in  any  other,  the  property  may  be  sold  under 
such  execution  ;  but  under  whatever  execution  the 
property  be  sold,  the  judgment  under  the  first  attach- 
ment must  be  satisfied  first,  and  the  proceeds  of  the 
sale  must  be  held  by  the  officer  for  that  purpose  until 
the  judgment  under  the  first  attachment  is  rendered, 
or  the  case  otherwise  disposed  of.  The  judgments 
under  the  senior  writs  of  attachment  are  to  be  satisfied 
in  the  order  in  which  they  are  levied. 

In  illustration  of  the  order  in  which  a  number  of 
writs  in  the  hands  of  an  officer  must  be  given  prefer- 
ence in  the  application  of  the  proceeds  of  sale,  the  case 
of  Egery  &  Hinckley,  respondents,  v.  Buchanan  and 
his  sureties,  appellants,  5   Cal.  59,  is  herewith  given  : 

"On  the  4th  day  of  August,  1852,  the  respondents 
commenced  an  action  by  attachment,  in  the  District 
Court  of  the  Fourth  District,  against  T,  A.  Thomas 
and  others,  and  sent  their  writ  of  attachment  to  the 
county  of  El  Dorado.  On  the  loth  day  of  August, 
1852,  the  writ  of  attachment  was  levied  upon  a  quartz 
mill  and  machinery  of  the  said  Thomas  and  others,  by 
Buchanan,  one  of  the  appellants,  who  was  then  the  sheriff 
of  said  county.  On  the  i8th  day  of  January,  1853, 
judgment  was  recovered  by  the  respondents  against 
Thomas  and  others,  for  the  sum  of  5^2345.96.     On  the 


§  207         LEVY  ON  PERSONAL  PROPERTY.  244 

same  day,  a  general  execution  was  issued  upon  diis 
judgment,  and  delivered  to  Buchanan.  On  the  i8th 
March,  1853,  Buchanan  made  a  return  of  'nulla  bona.' 
On  the  30th  of  March,  1853,  an  alias  execution  was 
issued  upon  the  judgment,  and  sent  as  the  first ;  and 
on  the  2ist  of  April  following,  the  same  return  was 
made  as  before, 

"On  the  9th  of  Februarys  1852,  Nathan  Harris 
commenced  an  action  in  the  District  Court  of  the  Elev- 
enth District,  for  the  county  of  El  Dorado,  to  enforce  a 
mechanic's  lien  upon  the  property-  mentioned  ;  and  on 
the  28th  of  May,  1852,  recovered  a  judgment  against 
Thomas  and  others,  for  the  sum  of  ^900  and  costs,  and 
on  the  2d  day  of  September,  1852,  an  execution  was 
issued,  directing  the  sale  of  the  property  to  satisfy  the 
judgment.  On  the  30th  of  October  following,  the 
propert}^  was  sold  under  the  said  judgment,  by 
Buchanan,  for  the  sum  of  $3000.  The  judgment  in 
favor  of  Harris  was  satisfied  out  of  the  proceeds  of  the 
sale,  and  a  balance  of  $1897  remained  in  the  hands  of 
Buchanan. 

"On  the  1 2th  day  of  August,  1852,  B.  F.  Langford 
commenced  an  action  in  the  District  Court  of  the 
Eleventh  District,  for  El  Dorado  county,  against  the 
same  defendants,  to  enforce  a  mechanic's  lien  upon 
the  same  property  for  the  sum  of  $1200,  and  on  the 
loth  of  May,  1853,  recovered  judgment  for  the  sum 
of  $1459,  and  costs,  and  direcdng  the  sale  of  the 
property  to  satisfy  the  amount  of  the  judgment.  An 
order  of  sale  was  issued  upon  the  judgment,  and 
placed  in  the  hands  of  Buchanan.  On  the  13th  of 
May,  1853,  upon  receipt  of  the  order  of  sale,  Bu- 
chanan applied  the  sum  of  $1563-45  (this  being  the 
amount  of  Langford' s  judgment,  with  costs),  of  the 


245 


LEVY  ON  PERSONAL  PROPERTY.        §  20; 


$1897  before  mentioned,  to  the  payment  of  Lang- 
ford's  judgment  and  costs.  There  remained  in  his 
hands  after  this  apphcation,  the  sum  of  $333-55'  o^ 
the  proceeds  of  sale  under  Harris'  judgment. 

"On  the  nth  day  of  August,  1852,  A.  L.  Chilton 
commenced  an  action,  by  attachment,  against  Thomas 
and  others,  for  $4720,  in  the  said  District  Court  for  El 
Dorado  county,  and  on  the  same  day  the  writ  of  at- 
tachment was  levied  by  Buchanan,  upon  the  property 
mentioned.  On  the  nth  of  May,  1853,  judgment 
was  rendered  in  favor  of  Chilton,  for  the  sum  of 
$3368.50,  and  costs,  and  the  judgment  directed  the 
sale  of  the  attached  property  to  satisfy  the  amount. 
On  the  1st  day  of  June,  1853,  an  order  of  sale  was 
placed  in  the  hands  of  Buchanan,  in  pursuance  of  this 
judgment,  and  on  the  21st  day  of  June,  1853,  he  ap- 
plied the  balance  of  the  proceeds  of  sale  under  Har- 
ris' judgment,  to-wit:  the  sum  of  $333-55.  to  the  pay- 
ment of  the  judgment  in  favor  of  Chilton. 

"The  respondents,  on  the  7th  of  December,  1853. 
upon  affidavit  and  motion,  obtained  a  rule  upon  the 
appellants,  from  the  District  Court  of  the  fourth  dis- 
trict, for  the  county  of  San  Francisco,  to  show  cause 
why  they  should  not  pay  to  respondents  the  sum  of 
^2345.96,  the  amount  of  the  judgment  rendered  in 
favor  of  respondents,  with  twenty-five  per  cent,  dam- 
ages, and  interest  at  the  rate  of  ten  per  cent,  per 
month,  from  the  24th  day  of  January,  1853.  The 
appellant,  Buchanan,  appeared,  and  answered  to  the 
rule,  and  showed  for  cause  the  facts  as  they  are  above 
set  forth.  After  hearing,  the  court  made  an  order  re- 
quiring Buchanan  and  his  sureties  to  pay  to  the  re- 
spondents the  sum  of  $1897.00,  with  twenty-five  per 
cent,   damages  and  interest,   at    the   rate  of  ten  per 


§  207         LEVY  ON  PERSONAL  PROPERTY.  246 

cent  per  month,  from  the  24th  day  of  January,  1853, 
to  the  time  of  the  entry  of  judgment — amounting  to 
$6708.32,  with  costs.  From  this  order  this  appeal  is 
taken,  and  the  judgment  was  reversed  for  the  reason 
that  the  plaintiffs  had  mistaken  their  remedy.  The 
plaintiffs  were  concluded  by  the  return  of  the  sheriff, 
and  their  action  should  have  been  for  a  false  return. 
The  sheriff  should  have  applied  the  proceeds  in  the 
following  order :  ist,  Harris;  2d,  Egery  &  Hinckley; 
3d,  Chilton;  4th,  Langford." 

An  attachment  issued  before  the  maturity  of  the  debt, 
is  prima  facie  void  as  against  a  subsequent  attachment. 
But  where  goods  were  fraudulently  purchased  by  an 
insolvent,  the  creditor  may  attach  before  the  maturity 
of  the  debt,  and  other  creditors,  subsequently  attaching, 
cannot  complain  that  the  suit  was  prematurely  brought. 
The  debt  in  such  case  is  equitably  due,  and  there  being 
no  actual  fraud  against  subsequent  creditors,  they  can 
not  be  preferred  in  equity,  even  if  the  suit  could  have 
been  defeated  by  the  debtor  himself.  (Patrick  v. 
Montandor,  13  Cal.  435.) 

Where  a  first  attachment  against  an  insolvent  is  set 
aside  as  fraudulent,  in  a  suit  brought  by  a  subsequent 
attachincr  creditor,  to  which  various  other  attachino- 
creditors,  prior  and  subsequent,  are  parties,  the  plaint- 
iff in  the  suit  cannot  claim  priority  over  the  attach- 
ments preceding  his,  on  the  ground  that  by  his  superior 
diligence  the  fraud  has  been  discovered.  Such  a  fund 
is  not  strictly  an  equitable  asset.  The  prior  attach- 
ments became  liens,  in  the  nature  of  a  legal  estate 
vested  in  the  sheriff  for  the  benefit  of  the  creditors. 
Plaintiff's  costs,  disbursements,  and  counsel  fees,  how- 
ever, should  first  be  deducted  from  the  fund  before 
distribution.     Idem, 


247  LEVY  ON  PERSONAL  PROPERTY.         §  2o8 

§  208.  How  the  Sheriff  should  apply  Money 
on  Bxecution. — When  a  sheriff  receives  money  on 
execution  sale  of  property  levied  on  by  virtue  of  attach- 
ments, it  is  his  duty  to  apply  the  money  in  the  order 
of  the  attachments.  Where  there  are  several  attach- 
ments, and  the  officer  receives  notice  that  the  senior 
attachment  is  defective,  he  should  make  inquiry  therein 
and  satisfy  himself  that  he  can  safely  pay  the  money 
upon  such  senior  attachment.  For,  if  he  pay  over 
money  upon  a  void  writ,  he  will  be  resposible  to  the 
plaintiffs  under  the  junior  writs,  notwithstanding  the 
fact  he  may  urge  in  excuse,  that,  the  senior  writ  was 
regular  upon  its  face.  It  is  held  in  McComb  v.  Reed, 
28  Cal.  281,  that  the  sheriff  has  no  right  to  go  back  of 
the  process  and  raise  the  question  as  to  the  validity  of 
the  attachments.  In  Buffandeau  v.  Edmondson,  17 
Cal.  441,  the  court  say  ;  "  It  is  no  part  of  the  sheriff's 
duty  to  sit  in  judgment  upon  official  acts  and  reform 
the  errors  or  revise  the  orders  of  a  judge."  Yet,  while 
a  sheriff  may  not  question  the  validity  of  a  writ,  he  is 
bound  to  protect  himself  from  loss  sought  to  be  put 
upon  him  while  in  the  faithful  discharge  of  his  duties. 

In  an  action  on  a  sheriff's  bond,  in  the  case  of  Mc- 
Comb V.  Reed,  28  Cal.  281,  judgment  was  rendered 
against  the  officer  and  his  sureties  for  not  applying 
moneys  received  under  execution  upon  plaintiff's 
judgment.  There  were  two  writs  of  attachment,  under 
which  the  property  taken,  and  the  money  realized  from 
the  sale  was  applied  on  the  junior  writ.  The  reason 
assigned  by  the  sheriff  was,  that  the  complaint  which 
was  served  with  the  summons  in  the  first  case  did  not 
set  up  a  cause  of  action  which  would  warrant  the  issu- 
ance of  an  attachment.  The  court  held,  notwithstand- 
ing, that  the  writ  was   not  void.     The   presumption  is, 


§  208         LEVY  ON  PERSONAL  PROPERTY.  248 

that  the  sheriff  was  led  to  beheve  that  the  writ  was 
voidable.  For  a  writ  may  be  not  void  and  yet  be  void- 
able. The  validity  of  the  writ  being  established,  the 
sheriff,  of  course,  was  liable. 

A  sheriff  who  receives  an  attachment,  regular  on  its 
face,  cannot  pay  over  the  money  obtained  by  him  from 
the  sale  of  property  levied  on  by  virtue  of  the  writ  to 
a  junior  attaching  creditor,  because  the  complaint  in 
the  action  on  which  the  first  attachment  was  issued 
did  not  set  forth  a  cause  of  action  upon  which  an 
attachment  could  issue.     Idon. 

It  is  not  only  a  frequently  quoted  principle  of  law, 
but  a  statutory  enactment  (§  4187,  Political  Code), 
that  "a  sheriff  or  other  ministerial  officer  is  justified 
in  the  execution  of,  and  must  execute,  all  process  and 
orders  regular  on  their  face,  and  issued  by  competent 
authority,  whatever  may  be  the  defect  in  the  proceed- 
ings upon  which  they  were  issued." 

However  bright  and  clear  the  protective  halo  of 
light  that  is  shed  upon  the  officer's  pathway  in  this 
broad  and  unambiguously  worded  declaration,  officers 
frequently  stumble  into  difficulties  by  serving  process 
regular  on  their  face,  and  issued  by  courts  of  com- 
petent authority.  For  it  is  an  equally  settled  principle 
that  no  person  can  be  divested  of  his  rights,  except 
by  due  process  of  law  ;  and  officers  are  often  called 
upon  to  carry  out  the  judgments  of  courts  under  the 
authority  of  writs  regular  on  their  face,  which  have 
been  wrongfully  issued. 

In  the  case  of  McComb  v.  Reed,  the  officer  was 
unquestionably  at  fault  in  applying  the  money  upon 
the  junior  writ.  It  was  an  expensive  lesson  in  law  to 
him.  The  senior  writ  having  been  declared  valid,  it 
was  doubtless  some  orratification  to  him  to  learn  from 

*3 


249  LEVY  ON  PERSONAL  PROPERTY.         §  2o8 

the  following-  remarks  by  the  court,  what  his  precise 
line  of  conduct  should  have  been  to  enable  him  to 
avoid  the  pitfall  he  so  unfortunately  fell  into  : 

"The  subsequent  attachment  of  Fleishman  varied 
neither  the  rights  nor  the  duties  of  the  sheriff,  as  above 
stated.  He  was  but  a  ministerial  officer  before  the 
second  attachment  was  made,  and  the  making  of  it 
did  not  vary  the  extent  nor  the  quality  of  his  powers. 
The  plaintiff's  attachment  and  execution  were  all  final 
documents  as  to  the  sheriff.  He  had  no  right,  when 
he  received  Fleishman's  attachment,  to  go  back  of  that 
process  and  raise  the  question  of  its  validity  upon  the 
pleadings  in  the  action  in  which  it  was  issued,  nor  was 
he  at  liberty  to  concern  himself  with  that  question 
when  he  received  Fleishman's  execution.  The  rule  of 
official  duty  in  the  matter  of  the  plaintiff's  process 
was  the  same.  When  the  sheriff  received  the  respec- 
tive executions,  it  was  his  duty  to  apply  the  money  in 
the  order  of  the  attachments  as  required  by  law. 
Had  he  done  so,  his  ministerial  duties  would  have 
been  fulfilled,  and  he  would  have  been  protected 
against  all  attacks  that  might  have  been  made  upon 
him  at  the  suit  of  Fleishman.  If  Fleishman  had  the 
better  right,  it  was  his  business  to  move  in  the  matter 
in  person,  and  in  one  of  the  alternative  modes  pointed 
out  in  Speyer  v.  Ihmels,  21  Cal.  287." 

In  the  case  of  Speyer  v.  Ihmels,  21  Cal.  286,  the 
court  decided  as  follows :  "  This  is  a  case  arising 
under  the  provisions  of  the  Civil  Practice  Act,  relative 
to  interventions.  (See  §  387,  C.  C,  P.)  On  the  loth  of 
January,  1861,  the  plaintiff  commenced  his  action,  and 
caused  an  attachment  to  be  levied  upon  the  property 
of  Ihmels  &  Co.  On  the  same  day,  Eggers  &  Co. 
commenced   an  action  aofainst  the  same   defendants, 


§  208         LEVY  ON  PERSONAL  PROPERTY.  25O 

and  caused  an  attachment  to  be  levied  upon  the  same 
property,  but  subsequent  to  the  plaintiff's  levy,  and  in 
due  course  obtained  judy^ment.  On  the  day  previous, 
E.  L.  Goldstein  had  commenced  an  action  against  the 
same  defendants,  and  caused  an  attachment  to  be 
levied  upon  the  same  property,  but  also  subsequent 
to  the  plaintiff's  levy.  Before  a  default  was  entered 
against  the  defendants  in  this  action,  E.  L.  Goldstein 
and  Eggers  &  Co.  severally  filed  interventions,  setting 
forth  these  facts,  and  also  averring  that  the  property 
attached  was  only  sufficient  to  satisfy  the  plaintift's 
claim,  and  also  charging  that  the  plaintiff's  demand 
was  not  due  at  the  time  he  commenced  his  action,  and 
also  that  he  had  no  valid  demand  agfainst  the  defend- 
ants,  and  that  his  action  was  prosecuted  for  the  purpose 
of  hinderinof  and  defraudinof  creditors  of  the  defendant. 
A  general  demurrer  was  interposed  to  these  complaints 
of  intervention  ;  that  is,  that  the  facts  set  forth  do  not 
constitute  a  cause  of  intervention.  The  demurrer  was 
overruled,  and  then  the  plaintiff  answered  the  inter- 
ventions ;  and  upon  the  action  coming  on  for  trial, 
after  the  intervenors  had  made  proof  of  their  attach- 
ment proceedings,  and  the  plaintiff  had  shown  the 
default  of  the  original  defendants,  each  party  moved 
the  court  for  judgment  in  his  favor,  without  giving 
further  evidence,  and  thereupon  the  court  found  in 
favor  of  the  plaintiff  against  the  defendants,  and  in 
favor  of  the  intervenors  against  the  plaintiff,  and 
adjudged  that  the  plaintiff  recover  the  amount  of  his 
demand  against  the  defendants,  and  that  his  attach- 
ments be  set  aside,  and  that  the  sheriff  pay  over  the 
money  in  his  hands  to  the  intervenors  /r<?  ra^a.  From 
this  judgment  the  plaintiff  appeals.  The  two  main 
points  are  :    i  st,  Whether  the  facts  show  a  case  for  a 


251  LEVY  ON  PERSONAL  PROPERTY.         §  2o8 

proceeding  by  intervention  ;     and,   2d,  Whether  the 
071US  probandi  was  on  the  plaintiff  to  prove  his  cause 
of  action  as  between  him  and  the  intervenors,  or  on 
the  intervenors  to  prove  their  cause  of  action  against 
the    plaintiff.        The  provisions   of  the   Practice  Act, 
relating  to  interventions,  were  not  a  portion  of  the 
system    of    proceedings    in    civil    cases   as    originally 
enacted,  but  were  adopted  in    1854  from  the  laws  of 
Louisiana.       In    a   case  like   the  present,   before  the 
introduction  of  these  provisions,  and  as  doubtless  may 
still  be  done,  the  proceedings  would  have  been  by  a 
separate  action  in  the  Jiature  of  a  bill  in  chancery,  as 
in  the  case  of  Heyneman  v.  Dannenberg,  6  Cal.  376, 
or  by  motion  to  the  court,  as  in  the  case  of  Dixey  v. 
Pollock,    8   Id.    570.       But   in    the    case   of  Davis  v. 
Eppinger,  8  Id.  378,  where  the  facts  were  like  those 
in  this  case,  it  was  decided  to  be  a  proper  case  for 
intervention.       Although  the  intervenors  have  not  a 
claim  to  or  lien  upon  any  property  which  is  the  direct 
subject  of  litigation   in  this  action,  they  have  a  lien 
upon  property  which  is  held  subject  to  the  results  of 
the  litigation,  and  which  would  be  lost  to  the  inter- 
venors if  the  original  action  should  proceed  to  judg- 
ment and  execution.       If  the  case  does  not  fall  within 
the  precise  definition  of  the  cases  in  which  intervention 
takes  place,  as  given  in  §  659,  and  as  explained  in  the 
case  of  Horn  v.  Volcano  Water  Works,  13  Cal.  62,  it 
is  substantially  within  the  object  provided  for  by  that 
section,  and  as  that  is  a  law  only  regulating  modes  of 
procedure,   and  not  affecting  rights  of  property,   we 
think   the    interpretation   given   to   it  in   the    case   of 
Davis  V.  Eppinger  should  not  be  changed.      '^   '  "•'      * 
*       *       *         The  objection  that  the  judgment  should 
not  have  directed  the  money  in  the  sheriff's  hands  to 


§  208         LEVY  ON  PERSONAL  PROPERTY.  252 

be  paid  to  the  intervenors  pro  rata,  cannot  avail  the 
appellant,  because  it  is  a  matter  in  which  he  is  not 
interested,  and  those  who  are  interested  in  it  have  not 
appealed.  But  the  judgment  having  been  rendered 
for  the  plaintiff  against  the  original  defendants,  that 
portion  of  the  judgment  which  sets  aside  the  plaintiff's 
attacliment  absolutely  was  erroneous.  It  should  only- 
have  been  postponed  to  those  of  the  intervenors.  In 
this  respect  the  judgment  must  be  modified." 

The  sheriff,  Gorham,  levied  an  attachment  on  the 
ship  Underwriter  in  the  case  of  Gilson  v.  Meiggs ;  and 
afterwards  levied  an  attachment  in  the  case  of  Dallas 
V.  Meiggs  on  the  same  property.  One  Davidson 
claimed  the  vessel,  and  the  sheriff  took  an  indemnity 
bond  from  both  Gilson  and  Dallas,  each  for  the  full 
value  of  the  property  attached. 

As  the  property  could  not  be  divided,  he  was  com- 
pelled to  seize  and  detain  it  entire,  under  both  attach- 
ments. The  seizure  under  Gilson' s  attachment  being 
prior  in  point  of  time,  was  absolute,  and  that  under 
Dallas'  attachment,  being  subsequent,  was  subject  to 
the  first.  As  the  sheriff  could  not  foresee  whose  levy 
would  ultimately  prevail,  it  was  his  right  and  his  duty 
to  take  full  indemnity  from  each,  so  that  he  would  be 
secure  in  any  event. 

Some  days  after  the  attachments  were  levied,  David- 
son sued  Gorham  for  the  seizure  of  the  vessel,  gjid  on 
the  i6th  of  January,  1855,  recovered  judgment  against 
him  for  $85,000.  The  sheriff  did  not  pay  this  judg- 
ment, but  assigned  to  Davidson  the  bond  of  indemnity 
given  by  Dallas.  Davidson  brought  suit  upon  this 
bond,  against  Dallas  and  his  sureties,  for  the  full 
penalty  of  the  bond,  namely,  $100,000,  and  they 
appealed. 


253  LEVY  ON  PERSONAL  PROPERTY.         §  2o8 

Gilson  obtained  judgment  against  Meiggs,  upon 
which  execution  issued  September  29th,  1855,  for 
$38,517.12,  under  which  the  vessel  was  sold  by  the 
sheriff  Oct.  8,  1855,  for  $35,000  and  the  proceeds  paid 
to  Gilson. 

In  the  case  of  Davidson  arainst  Dallas  and  his 
sureties,  on  appeal,  the  Supreme  Court  says:  "In 
detaining  the  vessel  under  each  attachment,  the  sheriff 
acted  as  the  agent  of  both  Gilson  and  Dallas ;  but  his 
agency  for  Gilson  was  primary ;  while  it  was  secondary 
for  Dallas.  It  was  conditional  as  to  both.  If  the 
sheriff  ultimately  incurred  no  liability,  he  could  recover 
nothing.  And  if  he  did  incur  liability,  must  he  not 
recover  in  the  order  in  which  he  levied  ?  And  of  each 
plaintiff,  in  proportion  to  the  liability  ultimately  in- 
curredy^r  Jiini.  The  ultimate  liability  of  the  indemnitors 
was  not  fixed  by  the  execution  of  the  bonds,  but 
depended  upon  subsequent  events ;  and  as  both  the 
fact  of  liability  at  all,  and  also  its  amount,  were 
dependent  upon  subsequent  events,  why  should  not 
the  fact,  as  to  which  plaintiff  should  be  liable,  and  in 
what  proportion,  and  in  what  order,  be  equally  depend- 
ent upon  the  result  of  the  proceedings  in  the  two 
attachment-suits  ?  If  the  sheriff  did  his  duty  in  taking 
full  indemnity  from  each  creditor  (and  if  he  did  not,  it 
was  his  own  error,)  then  he  was  protected  in  any 
event.  If  the  attachment  of  Gilson  was  defeated,  and 
that  of  Dallas  sustained,  then  Dallas  would  be  held  as 
the  sole  attaching  creditor,  and  be  subject  to  the 
ultimate  sole  liability." 

From  the  principles  of  the  cases  referred  to,  and 
the  provisions  of  our  Practice  Act,  these  conclusions 
would  seem  to  follow : 

I.    If  the  attachments   were    ultimately   sustained. 


§   208  LEW  ON  PERSONAL  PROPERTY.  254 

and  the  whole  proceeds  of  the  property  absorbed  by 
the  debt  of  Gllson,  then  he  would  have  been  solely 
responsible  to  the  sheriff  for  the  entire  liability  in- 
curred by  him  to  Davidson. 

2.  If  the  levy  of  Gilson  had  been  defeated,  and  that 
of  Dallas  sustained,  then  Dallas  would  have  been 
solely  responsible  for  the  entire  amount. 

3.  If  both  attachments  had  been  sustained,  and  the 
property  sold  for  more  than  sufficient  to  pay  Gilson, 
then  Gilson  and  Dallas  would  have  been  responsible 
in  proportion  to  the  amounts  paid  to  each  by  the 
sheriff. 

4.  If  both  the  attachments  had  been  defeated  by 
Meiggs,  or  if  the  suits  of  Gorham  against  the  indem- 
nitors had  been  commenced  before  the  determination 
of  the  attachment  suits  against  Meiggs,  then  the  sep- 
arate responsibility  of  Gilson  and  Dallas  would  have 
been  in  proportion  to  the  amounts  of  their  respective 
attachments,  except  in  case  the  whole  amount  for 
which  both  attachments  were  levied,  had  exceeded  the 
value  of  the  property  as  settled  in  the  suit  against 
the  sheriff,  in  which  case  the  prior  attaching  creditor 
would  have  been  responsible  to  the  amount  of  his 
attachment,  and  the  subsequent  attaching  creditor 
for  the  remainder. 

The  judgment  of  the  court  below  should  be  re- 
versed, a  new  trial  ordered,  and  the  cause  remanded 
for  further  proceedings. 

Upon  a  re-hearing,  at  a  subsequent  term,  the  Su- 
preme Court  affirmed  its  above  decision,  and  re- 
marked: "If  Gilson  had  refused  to  indemnify,  and 
Dallas  had  done  so,  then  the  sheriff  should  have  re- 
leased the  levy  of  Gilson,  and  Dallas  would  have 
shared  all  the  responsibility  and  all  the  benefit.     And 


255  LEVY  ON  PERSONAL  PROPERTY.         §  208 

the  same  rule  would  apply  to  any  subsequent  creditor 
who  refused  to  indemnify."  (Davidson  v.  Dallas,  8 
Cal.  227.) 

In   7   Cal.    142,  there  is  reported  the  case  of  one 
Graham  v.   Endicott,   and    his    sureties   on   his  bond 
as  sheriff  of  Nevada  county,  for  refusing  to  pay  over 
certain  moneys  collected  by  him  before  the  expiration 
of  his  term  of  office.     The  facts  set  up  in  the  com- 
plaint against  the  defendants  in  the  court  below,  are 
substantially  as  follows:  "Endicott,  while  sheriff,  levied 
certain  attachments  upon  the  property  of  Adams  & 
Co.,  the  proceeds  of  which  were  more  than  sufficient 
to  satisfy  the  claims  of  the  attaching  creditors,  leaving 
a  balance  in   his  hands.     After  the  expiration  of  his 
term  of  office,  the  plaintiff,  Graham,    recovered  judg- 
ment against  Adams  &  Co.,  attached  the  money  re- 
mainino-  in   Endicott' s  hands,  and  now  seeks  to  make 
him   and    his    sureties    officially  liable   for  the   same. 
Defendant   demurred,   the    demurrer   was    sustained, 
and  on  appeal  to  the  Supreme  Court,  the  judgment 
was   affirmed,   the  court  holding    that    there  was   no 
relation  between  Graham    and    Endicott   that  would 
render  him  officially  liable.     Although  responsible  to 
Adams  &  Co.,  he  was  so  far  as  Graham  was  concerned, 
a  mere  bailee  of  Adams  &  Co.,  and  could  only  be  gar- 
nisheed  as  a  private  individual.     It  was  not  denied,  on 
the  part  of  the  ex-sheriff,  that  the  liability  of  a  sheriff  or 
other  ministerial  officer  may  continue  after  his  term  of 
office  has  expired,  in  respect  to  such  matters  as  come 
into  his  hands  during  his  term.     The  defendant  could 
only  be  garnisheed  as  a  private  individual." 

One  court  cannot  enjoin  the  process  of  another 
court  of  co-ordinate  jurisdiction,  much  less  seize  the 
proceeds  of  such  process.     By  repeated  decisions  of 


§  208         LEVY  ON  PERSONAL  PROPERTY.  256 

the  Supreme  Court  of  this  State,  this  has  become  an 
estabhshed  principle  of  law.  (Rickett  v.  Johnson,  8 
Cal.  34  ;  Revalk  v.  Kroeman,  Id.  66  ;  Chipman  v.  Hib- 
bard,  Id.  268  ;  Phelan  v.  Smith,  Id.  520;  Anthony  v. 
Dunlap,  Id.  26  ;  Uhlfelden  z>.  Levy,  9  Cal.  607  ;  Weaver 
V.  Wood,  49  Cal.  300.)  If  two  attachments,  issued  out 
of  different  courts,  at  different  times,  are  placed  in  a 
sheriff's  hands,  and  both  are  levied  on  the  same  per- 
sonal property,  and  the  court  out  of  which  the  latest 
attachment  issues,  orders  the  property  sold  and  the 
proceeds  deposited  with  its  clerk,  and  the  sheriff  obeys, 
and  the  money  is  paid  to  the  second  attaching  creditor, 
the  sheriff  is  liable  to  the  first  attaching  creditor  for 
the  amount  for  which  he  recovers  judgment,  or  for  the 
amount  of  the  proceeds,  if  less  than  the  amount  of  the 
judgment.  The  court  from  which  the  second  attach- 
ment issues  may  make  an  order  of  sale  of  the  property, 
but  it  has  no  power  to  dispose  of  the  fund  arising  from 
the  sale,  other  than  the  surplus  remaining  after  the 
claim  of  the  first  attaching  creditor  is  satisfied.  In  the 
case  of  Weaver  v.  Wood,  the  sheriff  of  Solano  County 
had  two  attachments  issued  out  of  different  courts,  and 
by  order  of  the  court  from  which  the  second  attachment 
issued,  sold  the  property  and  paid  the  money  into  the 
court,  from  which  it  was  paid  to  the  plaintiff  in  the 
second  attachment.  As  a  consequence,  the  sheriff  was 
compelled  to  satisfy  the  first  attachment  out  of  his  own 
pocket.  On  appeal,  the  Supreme  Court  decided  that 
the  sheriff,  having  both  attachments  in  his  hands,  knew 
the  extent  of  the  demand  of  the  first  attaching  creditor, 
and  must  be  held  to  have  known  that  the  Fourth  Dis- 
trict Court  could  only  deal  with  the  excess  of  the 
proceeds  of  the  sale  over  that  demand. 


257  LEVY  ON  PERSONAL  PROPERTY.         §  208 

An  officer  is  not  liable  for  contempt  in  refusing  to 
pay  money  into  court  on  a  void  order.  The  case  of 
Brown  ct  al.,  petitioners,  v.  Moore,  judge,  etc.,  re- 
spondent, reported  in  the  Pacific  Coast  Law  Journal, 
October  14,  1882,  is  an  application  for  a  writ  prohibit- 
ing the  respondent  from  proceeding  further  in  the 
matter  of  certain  contempt  proceedings  against  the 
petitioners.  From  the  verified  petition,  it  appears  that 
during  the  month  of  April,  1882,  sundry  suits  at  law 
were  commenced  by  divers  persons,  against  one  Bart- 
lett,  in  the  Justices'  Courts  of  Amador  county,  to 
recover  certain  moneys  alleged  to  be  due  from  Bartlett 
to  the  respective  plaintiffs  in  those  suits.  Judgment 
passed  for  the  plaintiffs  therein,  on  which  executions 
were  issued  and  placed  in  the  hands  of  the  petitioners 
in  the  present  proceedings,  who  are  constables  in  and 
for  the  respective  towns  of  Amador  county,  in  which 
are  established  the  Justices'  Courts  that  rendered  the 
judgments.  The  executions  thus  issued  and  delivered 
to  the  petitioners  were  by  them,  as  such  constables, 
levied  on  certain  personal  property  of  Bartlett.  On 
the  22d  of  May,  1882,  a  judgment  was  entered  in  the 
Superior  Court  of  Amador  county  against  Bartlett 
and  in  favor  of  one  Post,  for  a  money  demand  ;  and 
on  this  judgment  execution  was  issued  on  the  same 
day  and  delivered  to  the  sheriff  of  Amador  county. 
The  sheriff,  on  the  24th  of  May  following,  levied  his 
writ  by  delivering  to  each  of  the  constables  (petition- 
ers here)  a  copy  of  the  same,  together  with  a  notice 
that  all  the  property  of  the  defendant  (Bartlett)  in  their 
possession  and  under  their  control  was  attached  in 
pursuance  of  such  execution,  and  demanded  of  them 
the  possession  of  the  property.  The  constables  re- 
fused to  deliver  the  property  to  the  sheriff,  and    the 

17 


§  208         LEVY  ON  PERSONAL  PROrERTV.  258 

next  day  the  latter  returned  the  writ  to  the  Superior 
Court,  stating  in  his  return,  substantially,  the  facts  as 
above  given.  On  the  27th  of  May,  on  an  affidavit 
made  on  behalf  of  Post,  setting  forth  that  the  judg- 
ments rendered  by  the  Justices'  Court  were  void,  the 
judge  of  the  Superior  Court  made  an  order  directing 
the  constables  to  appear  before  him  on  the  29th  of  the 
same  month  and  show  cause  why  they  should  not  sur- 
render the  property  to  the  sheriff.  On  the  day  named 
they  appeared  and  filed  their  several  affidavits,  declar- 
ing that  they  were  not  debtors  of  Bartlett's,  nor  had 
they  any  property  of  his  other  than  that  levied  on  and 
held  by  them  under  and  by  virtue  of  the  executions 
first  above  mentioned.  Thereupon,  the  judge  refused 
to  direct  the  constables  to  deliver  the  property  to  the 
sheriff,  but  on  the  same  day  entered  an  order  in  the 
following  words  :  "  It  is  ordered,  adjudged  and  decreed 
that  plaintiff  herein  (Post)  is  authorized  to  institute  an 
acdon  against  each  of  said  persons,  to  wit :  C.  L. 
French,  constable,  H.  B.  Templeton,  constable,  W.  H. 
Brown,  constable,  and  W.  Payton,  his  deputy  constable, 
to  determine  whether  or  not  the  said  persons  hold  and 
retain  said  property  adversely  to  the  defendant — said 
suits  to  be  commenced  within  thirty  days  from  the  date 
of  this  order.  And  it  is  further  ordered  that  each  of 
said  constables  is  given  leave  to  sell  the  said  property 
in  their  possession  belonging  to  said  defendant  under 
the  alleged  executions  in  their  hands,  and  they,  and 
each  of  said  constables  is  ordered  to  pay  all  the  pro- 
ceeds of  said  sales  of  property  to  the  clerk  of  the  court 
within  ten  days  after  the  sale  thereof" 

A  motion  was  subsequently  made  on  behalf  of  the 
constables  that  that  portion  of  the  order  of  May  29th, 
purpordng  to  authorize  them  to  sell   the   property  in 


2  59  LEVY  ON  PERSONAL  PROPERTY.         §  2o8 

their  possession  under  the  writs  of  execution  in  their 
hands,  and  requiring  them  to  pay  the  proceeds  of 
such  sales  to  the  clerk  of  the  Superior  Court,  be  set 
aside  on  the  ground  that  the  court  had  exceeded  its 
jurisdiction  in  so  ordering. 

This  motion  was  denied. 

The  constables  sold  the  property  under  and  by 
virtue  of  the  executions  held  by  them,  and  applied 
the  proceeds  to  their  satisfaction,  instead  of  paying 
them  to  the  clerk  of  the  Superior  Court,  as  directed 
by  the  order  of  May  29th ;  and  upon  these  facts  being 
brought  to  the  notice  of  the  Superior  Court,  that 
court  made  an  order  to  the  effect  that  the  constables 
be  brought  before  the  court  at  a  time  stated,  and 
show  cause  why  they  should  not  be  adjudged  guilty 
of  contempt  of  court  in  failing  and  refusing  to  pay 
the  proceeds  of  the  sales  of  the  property  to  the  clerk, 
and  further  directing  a  warrant  of  attachment  to  be 
issued  and  delivered  to  the  sheriff,  commanding  him 
forthwith  to  arrest  the  constables  and  hold  them  in 
his  custody,  unless  they  should  execute  an  under- 
taking in  the  sum  of  $100  each  for  their  appearance 
on  the  day  named. 

The  Superior  Court,  in  making  the  orders  com- 
plained of  by  the  petitioners,  was  proceeding  under 
the  supposed  authority  of  §§  717  and  720  of  the  Code 
of  Civil  Procedure.  Even  if  it  be  admitted  that  those 
sections  have  any  application  to  an  officer  holding 
property  of  a  judgment  debtor  by  virtue  of  a  legal 
process  issued  against  him,  neither  of  them  confers 
on  the  court  the  power  to  order  such  property  sold, 
nor  to  direct  that  the  proceeds  of  it  be  paid  to  the 
clerk  of  the  court.  (Hartman  v.  Olvera,  51  Cal.  501.) 
The  Superior  Court,  therefore,  exceeded  its  power  in 


^  209         LEVY  ON  PERSONAL  PROPERTY.  26O 

making  the  order  requiring  the  petitioners  to  pay  to 
the  clerk  of  the  Superior  Court  the  proceeds  of  the 
property  sokl  under  the  executions  held  by  them 
ao-ainst  Bardett.  For  the  disobedience  of  that  void 
order,  the  petitioners  could  not  be  lawfully  punished 
for  contempt.  The  proceedings  looking  to  that  end 
should,  therefore,  be  arrested.  (Williams  z>.  Dwi- 
nelle,  51  Cal.  422;  Ouimbo  Appo  z>.  The   People,    20 

N.  Y.  53I-) 

Demurrer  overruled. 

We  concur:  McKinstry,  J.,  Sharpstein,  J.,  Morrison, 
C.  J.,  McKee,  J.,  Thornton.  J. 

The  application  of  an  attaching  creditor,  to  compel 
the  sheriff  to  pay  over  the  proceeds  of  goods  attached, 
there  being  conflicting  claims  between  several  attaching 
creditors,  may  be  made  by  motion.  If  notice  of  the 
motion  is  not  given,  by  the  party  moving,  to  the  other 
attaching  creditors,  it  is  the  duty  of  the  sheriff  to  do 
so,  if  he  wishes  the  decision  to  bind  them.  (Dixey  v. 
Pollock,  8  Cal.  543.) 

§  209.  Preferred  Labor  Claims. — In  cases  of 
executions,  attachments,  and  writs  of  a  similar  nature, 
issued  against  any  person,  except  for  claims  for  labor 
done,  any  miners,  mechanics,  salesmen,  servants,  clerks, 
and  laborers,  who  have  claims  against  the  defendant 
for  labor  done,  may  give  notice  of  their  claims,  and 
the  amount  thereof,  sworn  to  by  the  person  making 
the  claim,  to  the  creditor  and  the  officer  executing 
either  of  such  writs,  at  any  time  before  the  actual  sale 
of  property  levied  on ;  and,  unless  such  claim  is 
disputed  by  the  debtor  or  a  creditor,  such  officer  must 
pay  to  such  person,  out  of  the  proceeds  of  the  sale, 
the  amount   each    is  entided    to  receive   for  services 


26  I  LEVY  ON  PERSONAL  PROPERTY.         §  209 

rendered  within  the  sixty  days  next  preceding  the 
levy  of  the  writ,  not  exceeding  $ioo.  If  any  or  all  of 
the  claims  so  presented,  and  claiming  preference 
under  this  section,  are  disputed  by  either  the  debtor 
or  a  creditor,  the  person  presenting  the  same  must 
commence  an  action  within  ten  days  for  the  recovery 
thereof,  and  must  prosecute  his  action  with  due 
diligence,  or  be  forever  barred  from  any  claim  of 
priority  of  payment  thereof;  and  the  officer  shall 
retain  possession  of  so  much  of  the  proceeds  of  the 
sale  as  may  be  necessary  to  satisfy  such  claim  until 
the  determination  of  such  action  ;  and  in  case  judg- 
ment be  had  for  the  claim,  or  any  part  thereof,  carrying 
costs,  the  costs  taxable  therein  shall  likewise  be 
a  preferred  claim,  with  the  same  rank  as  the  original 
claim.      (§  1206,  Code  Civil  Procedure.) 

The  following-  section  was  added  to  the  code  and 
approved  March  7th,  1883:  "The  debtor  or  creditor 
intending  to  dispute  a  claim  presented  under  the  pro- 
visions of  the  last  section  (1206)  shall,  within  ten 
days  after  receiving  notice  of  such  claim,  serve  upon 
the  claimant  and  the  officer  executing  the  writ,  a  state- 
ment, in  writing,  verified  by  the  oath  of  the  debtor,  or 
the  person  disputing  such  claim,  setting  forth  that  no 
part  of  said  claim,  or  not  exceeding  a  sum  specified, 
is  jusdy  due  from  the  debtor  to  the  claimant  for 
services  rendered  within  the  sixty  days  next  pre- 
ceding the  levy  of  the  writ.  If  the  claimant  bring 
suit  on  a  claim  which  is  disputed  in  part  only,  and 
fail  to  recover  a  sum  exceedino-  that  which  was  ad- 
mitted  to  be  due,  he  shall  not  recover  costs,  but  costs 
shall  be  adjuged  against  him." 

The  constitutionality  of  §  1206  of  the  Code  of  Civil 
Procedure,  which   provides  for  giving  preference   to 


§§  2IO,  211        L?:VY  ON  PERSONAL  PKOPERTV.  262 

labor  claims  out  of  moneys  received  on  execution,  is 
affirmed  by  the  Supreme  Court,  in  the  case  of  Mohle 
V.  Tschirch,  the  opinion  in  which  case  was  filed  May 
nth,  1883. 

§  210.  Levy  and  Sale  of  Personal  Property. — 
The  levy  upon  personal  property  under  a  writ  of  execu- 
tion is  made  in  the  same  manner  as  under  the  w^it  of 
attachment.  A  special  inventor}'  of  the  articles  to  be 
sold  should  be  prepared  so  that  confusion  may  be 
avoided  when  the  sale  takes  place.  A  large  stock  of 
goods  sold  in  parcels  cannot  well  be  disposed  of  at  a 
public  sale  where  there  are  many  bidders  present 
without  such  an  inventory  and  pre-arranged  method 
of  conducting  the  sale.  No  sale  should  be  held  ex- 
cept  in  conformity  to  §  692  of  the  Code  of  Civil  Pro- 
cedure, which  provides  that  before  the  sale  of  prop- 
erty on  execution,  notice  thereof  must  be  given  by 
posting  written  (or  printed)  notice  of  the  time  and 
place  of  sale  in  three  public  places  in  the  township  or 
city  where  the  sale  is  to  take  place,  for  not  less  than 
five  nor  more  than  ten  days.  The  notices  must  state 
the  kind  of  money  or  currency  in  which  bids  may  be 
made  at  such  sale,  which  must  be  the  same  as  that 
specified  in  the  judgment.  If  the  writ  does  not 
specify  in  the  judgment  the  kind  of  money,  the  sale 
should  be  made  for  "lawful  money  of  the  United 
States." 

§211.  Penalty  for  Selling  without  Notice. — 
An  ofificer  selling  without  such  notice  forfeits  $500  to 
the  aggrieved  party,  in  addition  to  his  actual  damages. 
This  does  not  apply  to  the  purchaser  at  such  sale. 
Such  purchaser  is  not  the   "aggrieved  party"  within 


26^  LEVY  ON  PERSONAL  PROPERTY.       §§   2  12.  213 


the  meaning  of  the  law.  The  parties  to  the  execution 
are  the  "aggrieved  parties."  (Kelly  v.  Desmond, 
decision  filed  June  15,  1883.)  The  remedy  against  a 
sheriff  for  selling  property  on  insufficient  notice  is  con- 
fined to  the  statutory  remedy.  (Smith  v.  Randall,  6 
Cal.  47,  affirmed.)  [17  Cal.  626  ;  also  cited  as  author- 
ity in  Satterlee  v.  San  Francisco,  23  Cal.  320  ;  and  see 
Herzo  V.  San  Francisco,  y^  Cal.  140.]  The  statute 
provides  an  adequate  remedy  in  such  cases  by  an 
action  against  the  officer,  and  the  party  aggrieved  is 
entided  to  no  other  remedy.  In  computing  the  time 
of  giving  notice  of  the  sale,  the  day  on  which  the  sale 
is  made  should  be  excluded. 

§  212.     When  Sale  should  be  Postponed. — At 

sales  held  by  a  sherifif  or  constable,  where  bids  are 
made  that  are  palpably  disproportioned  to  the  value  of 
the  property,  the  officer  should  adjourn  the  sale. 
Where  it  is  real  property,  the  officer  may  be  unable  to 
judge  of  the  sufficiency  of  the  bid,  for  the  reason  that 
the  property  may  be  covered  with  mortgages.  But  in 
the  case  of  personal  property,  an  approximate  estimate 
of  its  value  may  be  arrived  at  by  the  officer.  Inade- 
quacy of  price  alone  is  sufficient  to  authorize  a  court  to 
set  aside  a  sale.  A  sale  should  be  postponed  where 
there  are  indications  on  the  part  of  bidders  of  collusion 
to  depreciate  the  sale  to  an  unreasonable  extent ;  or 
when  the  officer  has  reason  to  believe  that  he  can 
realize  more  by  a  sale  at  a  future  day. 

§  213.     The   Title  the  Purchaser  Secures. — A 

sale  of  personal  property  passes  to  the  purchaser  only 
such  title  as  the  vendor  had. 


§§2  1 4-- I  7        LEVY  ON  PERSONAL  PROPERTY.  264 

§  214.  When  Sheriff  may  Levy  on  Realty 
instead  of  Personal  Property. — The  sheriff  may,  on 
tlie  request  of  the  defendant  in  execution,  properly 
levy  on  real  estate,  though  there  be  personal  property 
present  amply  sufficient  to  satisfy  the  execution. 
(Smith  z'.  Randall,  6  Cal.  52.)  The  request  should  be 
in  writing. 

§  2 1 5.  Seizure  and  Sale  of  Promissory  Note. — 
A  promissory  note,  being  the  property  of  the  defend- 
ant in  an  attachment  and  execution,  was  held,  in  the 
case  of  Davis  z>.  Mitchell,  34  Cal.  81,  to  be  liable  to 
seizure  and  sale,  and  the  purchaser  takes  it,  when 
delivered  to  him,'  upon  the  same  terms  as  if  it  had  come 
to  his  hands  in  the  ordinary  course  of  business. 
Whether,  in  such  case,  the  sale  will  be  valid  without  a 
delivery  of  the  note  to  the  purchaser,  is  discussed  in 
the  decision,  but  not  decided. 

§  216.     Preventing  Bidding  at  Sheriff's  Sale. — 

An  agreement  between  a  judgment  creditor  and  one 
claiming  an  interest  in  the  thing  about  to  be  sold  under 
an  execution  against  a  third  person,  that  neither  shall 
bid  against  the  other,  but  that  the  claimant  shall  and 
may  buy  in  the  property,  is  held  in  Packard  z'.  Bird,  40 
Cal.  379,  to  be  void,  as  contrary  to  public  policy. 

§  217.  How  Sale  should  be  Conducted. — All 
sales  of  property  under  execution  must  be  made  at 
auction  to  the  highest  bidder,  between  the  hours  of 
nine  in  the  morning  and  five  in  the  afternoon.  (§  694, 
C.  C.  P.)  If  the  sale  cannot  be  completed  in  one 
day,  it  may  be  postponed  until  the  next  day  without 
posting  notices  of  the  postponement,  if  there  are  per- 


265  LEVY  ON  PERSONAL  PROPERTY.   §§  2  1 8,  219 

sons  present  to  receive  the  proclamation  of  the  post- 
ponement. 

After  sufficient  property  has  been  sold  to  satisfy  the 
execution,  no  more  can  be  sold  under  that  writ. 
Neither  the  officer  holding  the  sale,  nor  his  deputy, 
can  become  a  purchaser  or  be  interested  in  any  pur- 
chase at  such  sale.  When  the  sale  is  of  personal 
property,  capable  of  manual  delivery,  it  must  be 
within  view  of  those  who  attend  the  sale,  and  be  sold 
in  such  parcels  as  are  likely  to  bring  the  highest  price. 
The  judgment  debtor,  if  present  at  the  sale,  may  di- 
rect the  order  in  which  property  shall  be  sold,  when 
such  property  consists  of  several  lots  or  parcels,  or  of 
articles  which  can  to  advantage  be  sold  separately, 
and  the  sheriff  must  follow  such  directions. 

§  2 1 8.  Re-sale  where  Bidder  Refuses  to  Pay. — 
If  the  purchaser  refuse  to  pay  the  amount  bid  by  him 
for  property  struck  off  to  him,  the  officer  may  again 
sell  the  property  at  any  time  to  the  highest  bidder,  and 
if  any  loss  be  occasioned  thereby,  the  officer  may  re- 
cover the  amount  of  such  loss,  with  costs,  from  the 
bidder  so  refusing,  in  any  court  of  competent  jurisdic- 
tion. If  the  amount  of  such  loss  is  under  $300,  an 
action  may  be  commenced  in  a  Justice's  Court;  if  over 
that  amount,  in  the  Superior  Court.  When  the  pur- 
chaser refuses  to  pay,  the  officer  may  in  his  discre- 
tion, thereafter  reject  any  subsequent  bid  of  such 
person.      (§§  695,  696,  C.  C.  P.) 

§  219.  Judgment  Payable  in  Money. — A  sheriff, 
under  his  general  powers,  cannot  take  anything  but 
legal  currency  in  satisfaction  of  an  execution,  and 
where  he  takes  a  note,  indorses  it  on  the  execution 


§§  220,  22  1   LEVY  ON  PERSONAL  PROPERTY.  266 

and  then  returns  it  satisfied,  the  return  is  not  con- 
clusive, and,  perhaps,  not  prima  facie  evidence  of 
satisfaction,  unless  it  shows  some  authority  for  re- 
ceiving the  note.      (Mitchell  v.  Hackett,  14  Cal.  661.) 

§  220.  Purchaser  Entitled  to  Certificate  of 
Sale. — When  the  purchaser  of  any  personal  prop- 
erty, capable  of  manual  delivery,  pays  the  purchase- 
money,  the  officer  making  the  sale  must  deliver  to  the 
purchaser  the  property,  and,  if  desired,  execute  and 
deliver  to  him  a  certificate  of  the  sale.  Such  certifi- 
cate conveys  to  the  purchaser  all  the  right  which  the 
debtor  had  in  such  property  on  the  day  the  execution 
or  attachment  was  levied.  If  the  sale  is  of  personal 
property  not  capable  of  manual  delivery,  the  officer, 
on  receipt  of  the  purchase-money,  must  execute  and 
deliver  to  the  purchaser  a  certificate  of  sale,  and  such 
certificate  conveys  all  the  right  which  the  debtor  had 
in  such  property  on  the  day  the  execution  or  attach- 
ment was  levied.      (§§  698,  699,  C.  C.  P.) 

A  sheriff's  bill  of  sale  of  personal  property  sold  on 
execution  need  not  contain  all  the  formalities  of  a 
regular  certificate.      (Lay  v.  Neville,  25  Cal.  546.) 

§  221.  Sale  of  Choses  in  Action. — Wherever 
choses  in  action  are  liable  to  levy  and  sale,  they  must 
be  in  possession  of  the  officer  at  the  sale,  to  be  exhib- 
ited to  the  bystanders  and  assigned  to  the  purchaser, 
unless  a  full  and  accurate  description  of  the  particular 
interest  (where  it  is  a  contingent  and  complicated 
contract)  and  chose  in  action,  with  all  its  conditions 
and  covenants,  and  a  full  explanation  of  the  facts 
determining  the  value  of  the  chose,  be  given  by  the 
levy  and  announced  at  the  sale.    In  the  case  of  Crandall 


267  LEVY  ON  PERSONAL  PROPERTY.   §§  2  2  2,  223 

V.  Blen,  13  Cal.  20,  the  sheriff  levied  by  g-arnishment 
upon  a  written  contract  or  agreement,  but  did  not  take 
any  property  into  possesson.  Notices  were  posted 
and  sale  had  and  the  agreement  was  struck  off  to  the 
plaintiff.  The  agreement  was  not  present  at  the  sale, 
nor  fully  explained  to  the  bystanders.  The  court  held 
that  no  title  whatever  passed  by  the  sale. 

§  222.     Effect    of  Quashing    an    Execution. — 

Upon  the  quashing  of  an  execution,  the  officer  is  bound 
to  return  the  property  levied  upon  to  the  defendant 
unless  he  have  other  writs  in  hand.  In  the  case  of 
Wellington  v.  Sedgwick,  1 2  Cal.  470,  the  defendant,  as 
sheriff,  having  an  execution  against  Stevens  &  Markley, 
levied  it  upon  certain  goods,  the  property  of  Stevens 
&  Markley,  and  placed  them  in  the  hands  of  Welling- 
ton, as  keeper,  and  subsequendy  the  execution  was 
quashed,  having  been  issued  without  seal ;  and  between 
that  time  and  the  issue  and  levy  of  a  new  execution, 
Wellington,  who  still  remained  in  possession  of  the 
goods,  purchased  the  goods  of  Stevens  &  Markley. 
The  court  held  that  such  purchase  was  valid,  and 
vested  the  property  in  Wellington.  Upon  the  levy  of 
the  execudon,  the  property  vested  in  the  sheriff  for 
certain  purposes  ;  his  tide  was  only  a  qualified  dtle, 
which  was  defeated  by  the  quashing  of  the  execution. 
The  tide  then  returned  to  Stevens  and  Markley  ;  they 
could  discharge  the  sheriff  from  the  duty  of  returning 
the  property  to  them,  which  they  did  by  the  sale  to 
Wellington. 

§  223.  Attachments  of  Vessels. — The  attach- 
ment of  a  vessel  differs  in  method  very  little  from  a 
levy  upon  other  kinds  of  personal  property.     The  writ 


§2  24  LEVY  ON  PERSONAL  PROPERTY.  268 

must  be  directed  to  the  sheriff  of  the  county  within 
which  the  steamer,  vessel,  or  boat  hes,  and  chrect  him 
to  attach  such  steamer,  vessel  or  boat,  with  its  tackle, 
apparel  and  furniture,  and  keep  the  same  in  his  cus- 
tody until  discharged  in  due  course  of  law.  The  sheriff 
must  execute  the  writ  without  delay,  and  must  attach 
and  keep  in  his  custody  the  steamer,  vessel,  or  boat 
named  therein,  with  its  tackle,  apparel  and  furniture  ; 
but  the  sheriff  is  not  authorized  by  any  such  writ  to 
interfere  with  the  discharge  of  any  merchandise  on 
board  of  such  vessel,  or  with  the  removal  of  any  trunks 
or  other  property  of  passengers,  or  of  the  captain, 
mate,  seamen,  steward,  cook,  or  other  persons  em- 
ployed on  board.  The  attachment  may  be  released 
upon  the  usual  undertaking  (§§  819,  820,  822,  C.  C. 
P.),  if  there  are  no  claims  for  wages  against  the  vessel. 
See  §  825,  C.  C.  P. 

§  224.  Sale  of  Vessels  and  Payment  of  Pro- 
ceeds.— When  an  attachment  has  been  levied  upon  a 
steamer,  vessel,  or  boat,  and  the  attachment  be  not 
dischareed,  and  a  iudoment  be  recovered  in  the  ac- 
tion  in  favor  of  the  plaintiff,,  and  an  execution  be 
issued  thereon,  the  sheriff  must  sell  at  public  auc- 
tion, after  publication  of  notice  of  such  sale  for  ten 
days,  the  steamer,  vessel,  or  boat,  with  its  tackle,  ap- 
parel, and  furniture,  or  such  interest  therein  as  may 
be  necessary,  and  must  apply  the  proceeds  of  the  sale 
as  follows: 

I.  When  the  action  is  brought  for  demands  other 
than  the  wages  of  mariners,  boatmen,  and  others 
employed  in  the  service  of  the  steamer,  vessel,  or 
boat  sold,  to  the  payment  of  the  amount  of  such 
wages,  as  specified  in  the  execution ; 


269  LEVY  ON  PERSONAL  PROPERTY.         §  224 

2.  To  the  payment  of  the  judgment  and  costs,  in- 
cluding his  fees ; 

3.  He  must  pay  any  balance  remaining  to  the 
owner,  or  the  master,  agent,  or  consignee,  who  may 
have  appeared  on  behalf  of  the  owner,  or  if  there  be 
no  appearance,  then  into  court,  subject  to  the  claim 
of  any  party  or  parties  legally  entitled  thereto. 
(§  824,  C.  C.  P.) 

No  attachment  upon  a  vessel  can  be  discharged 
upon  filing  an  undertaking  for  its  release,  after  a 
claim  has  been  duly  filed  for  wages  against  the  ves- 
sel, as  provided  in  §§  825  and  826  of  the  Code  of 
Civil  Procedure.  The  notice  of  sale  published  by 
the  sheriff  must  contain  a  statement  of  the  measure- 
ment and  tonnage  of  the  steamer,  vessel,  or  boat, 
and  a  general  description  of  her  condition.  (§  827, 
C.  C.  P.) 

The  only  preference  given  over  the  judgment  cred- 
itor, in  execution  sales  of  vessels,  is  in  the  case  of 
claims  for  wages  of  mariners,  boatmen,  and  others 
employed  in  the  service  of  the  vessel,  which  must  be 
first  paid,  and  §  329,  Practice  Act,  shows  how  such 
privileged  claimants  shall  intervene  for  their  interest 
in  the  proceeds.     (Fisher  v.  White,  8  Cal.  p.  401.) 


CHAPTER  IX. 


EXECUTION LEVY    UPON    REAL    PROPERTY. 


§  225.  Levy  upon  Real  Property. 

§  226.  Interests  in  Land  Attachable. 

§  227.  Notices  of  Sale. 

§  228.  Sale  Without  Notice. 

§  229.  When  Party  not  Aggrieved  Without  Notice. 

§  230.  Setting  Aside  Sheriff's  Sale. 

§  231.  Irregularities  of  Sale. 

§  232.  When  and  How  Real  Property  must  be  Sold. 

^  233.  Irregular  Levy. 

§  234.  Purchaser  at  Sheriff's  Sale. 

§  235.  Title  under  Certificate  of  Sale. 

I  236.  Sheriff's  Sales  not  Credit  Sales. 

§  237.  Relief  of  Purchasers. 

§  238.  Insufficient  Notice  no  Defense. 

§  239.  Relief  in  Discretion  of  Court. 

§  240.  When  cannot  Recover  Amount  of  Bid. 

§  241.  When  Misrepresentation  used  at  Sale. 

§  242.  Doctrine  of  Caveat  Emptor. 

§  243.  Recovery  from  Bidder,  at  Sale. 

§  244.  Time  of  Re-sale. 

§  245.  When  Mandamus  will  not  Lie  to  Compel  Sheriff  to  make 

Deed. 

§  246.  Title  of  Purchaser  of  Leasehold  Interest. 

§  247.  Proceedings  against  Corporations. 

§  248.  Title  of  Purchasers  Generally. 

§  249.  Tide  not  Dependent  on  Sheriff's  Return. 

§  250.  When  Owner  is  Estopped  from  Asserting  Title. 

§  251.  Certificate  of  Sale. 


271  LEVY  UPON  REAL  PROPERTY.     §  225,  2  26 

<§  252.  Cloud  on  Title. 

§  253.  Void  Levy  on  Homestead. 

§  254.  Cloud  on  Homestead  Title. 

§  255.  When  Sale  may  be  Enjoined. 

■§  256.  How  Homestead  may  be  Levied  upon. 

§  257.  Sale  of  Homestead. 

§  258.  When  Judgment  not  a  Lien. 

§  259.  Judgment  no  Lien  on  Homestead. 

§  260.  Return  of  Writ. 

§  225.  Levy  upon  Real  Property. — In  levying 
upon  real  property,  the  same  method  is  followed  as 
that  under  the  writ  of  attachment,  viz.:  By  filing  with 
the  county  recorder,  etc.  The  officer  levies  upon  the 
interest  of  the  debtor  in  the  property.  If  it  turn  out 
that  the  debtor  had  no  interest  therein,  no  property  is 
acquired  thereby.  The  notice  of  levy,  notice  of  sale, 
the  certificate  of  sale  given  to  the  purchaser,  and  the 
deed  which  follows  after  the  expiration  of  the  time  for 
redemption,  should  recite  that  it  is  the  interest  of  the 
debtor  which  is  affected  by  the  several  proceedings. 

Real  property  and  any  interest  therein  belonging  to 
the  defendant  may  be  attached. 

§  226.  Interests  in  Land  Attachable. — The  term 
"land"  embraces  all  tides,  legal  or  equitable,  perfect 
or  imperfect,  including  such  rights  as  lie  in  contract — 
those  which  are  executory  as  well  as  those  which  are 
executed ;  any  interest,  therefore,  in  land,  legal  or 
equitable,  is  subject  to  attachment  or  execution.  The 
interest  of  a  person  who  holds  a  contract  to  purchase 
land  may  be  levied  upon  and  sold.  For  example  :  F., 
holding  a  contract  to  purchase  land  from  G.,  his  inter- 
est was  sold  under  execution  and  purchased  by  die 
intervenor,  who,  after  receivino-  his  deed,  in  due  time 


§  2  27  LEVY  UPON  REAL  PROPERTY.  272 

tendered  the  balance  of  the  purchase  money  to  G.  and 
demanded  a  deed.  G.  refused  to  receive  the  money 
or  to  make  the  deed,  and  in  execution  of  his  contract, 
conveyed  the  land  to  the  wife  of  F.  and  to  E.  F.,  the 
wife  of  one  of  the  plaintiffs — to  whom,  also,  a  tender 
of  the  money  and  a  demand  for  a  deed  was  made  by 
the  intervenor.  Afterward,  E.  F.  conveyed  to  F.  and 
his  wife,  and  they  executed  a  mortgage  to  the  plaintiffs 
to  secure  the  consideration  for  the  conveyance  :  Held, 
in  Fish  v.  Fowlie,  58  Gal.  373,  in  an  action  for  fore- 
closure, that  the  intervenor,  upon  paying  into  court — 
to  be  applied  to  the  payment  of  the  mortgage  debt — 
the  amount  of  the  principal  and  interest  due  to  the 
defendants  for  the  purchase  money  paid  under  the 
contract  of  sale,  was  entitled  to  a  cancellation  of  the 
mortofao^e. 

§  227.  Notice  of  Sale  Under  Execution. — Be- 
fore the  sale  of  real  property  under  a  writ  of  execution, 
notice  thereof  must  be  given  as  follows  :  By  posting 
written  notice  of  time  and  place  of  sale,  particularly 
describing  the  property,  for  twenty  days,  in  three 
public  places  of  the  township  or  city  where  the  prop- 
erty is  situated,  and  also  where  the  property  is  to  be 
sold,  and  publishing  a  copy  thereof  once  a  w^eek  for 
the  same  period,  in  some  newspaper  published  in  the 
county,  if  there  be  one.  When  the  judgment  under 
which  the  property  is  to  be  sold  is  made  payable  in  a 
specified  kind  of  money  or  currency,  the  notices  of 
sale  must  state  the  kind  of  money  or  currency  in  which 
bids  may  be  made  at  such  sale,  which  must  be  the 
same  as  that  specified  in  the  judgment.  Where  no 
kind  of  money  is  specified,  the  sale  should  be  made  for 
"lawful  money  of  the  United  States." 


2  73  LEVY  UPON  REAL  PROPERTY.  §  2  28 

§  228.  Sale  Without  Notice.— §  692,  Code  of 
Civil  Procedure,  prescribes  the  manner  in  which  notice 
of  sale  must  be  given,  and  §  693  provides  that  "an 
officer  selling  without  the  notice  prescribed  by  the 
last  section,  forfeits  $500  to  the  aggrieved  party,  in 
addition  to  his  actual  damages." 

An  action  cannot  be  maintained  by  the  defendant  in 
an  execution  to  recover  of  the  officer  the  penalty  pre- 
scribed for  selling  without  proper  notice,  unless  by  a 
sale  so  made  the  complainant  has  been  deprived  of 
his  property.  (Askew  v.  Ebberts,  et  al.,  22  Cal,  263.) 
If  the  attempted  sale  is  a  nullity  and  passes  no  title, 
no  injury  has  been  sustained,  and  no  right  of  action 
for  the  forfeiture  accrues.  In  the  case  here  referred 
to,  plaintiff  brought  an  action  upon  a  constable's  bond, 
executed  by  the  defendant  Ebberts  as  principal  and 
the  other  defendants  as  sureties,  to  recover  the  sum 
of  $500,  the  penalty  or  forfeiture  prescribed  by  stat- 
ute. A  judgment  had  been  rendered  against  the  ap- 
pellant, an  execution  issued  thereon  which  came  to 
the  hands  of  Ebberts,  as  constable,  for  service.  He 
levied  the  execution  upon  a  mining  claim,  advertised 
it  for  sale,  and  sold  it  to  one  Felton  for  ^25.  The 
purchaser  did  not  pay  the  bid,  nor  was  any  certificate 
issued  therefor.  The  constable,  finding  that  the  sale 
had  not  been  advertised  the  length  of  time  required 
by  the  statute,  advertised  it  again  for  sale,  giving  the 
proper  length  of  notice,  and  sold  the  property  at  such 
second  sale  for  $206.  The  court  held  that  unless  the 
sale  was  perfected  by  a  transfer  of  title,  the  debtor 
had  suffered  no  injury,  and  was  not  "aggrieved" 
within  the  intent  and  meaning  of  the  statute.  There 
was  no  "sale"  of  the  property  under  the  defective 
notice. 


§§  2  29,  230    LEVY  UPON  REAL  PROPERTY.  274 

When  an  officer  has  two  or  more  executions  levied 
upon  the  same  property,  he  may  advertise  the  same 
for  sale  in  one  series  of  notices  the  time  required  by 
law.  viz.:  by  posting  written  notice,  particularly  de- 
scribing the  property,  for  twenty  days,  in  three  public 
places  of  the  township  or  city  where  the  property  is 
situated,  and  also  where  the  property  is  to  be  sold, 
and  publishing  a  copy  thereof  once  a  week  for  the 
same  period,  in  some  newspaper  published  in  the 
county,  if  there  be  one ;  and  the  notice  should  de- 
scribe the  judgments  and  tides  of  the  different  cases 
under  which  the  levies  were  made. 


§  229.  When  Party  not  Aggrieved  by  Sale 
Without  Notice. — No  right  of  property  at  an  ex- 
ecution sale  vests  in  the  purchaser  until  he  pays  the 
purchase  money,  and  until  this  is  done,  the  sale  is  not 
so  far  perfected  as  to  constitute  the  foundation  of  an 
action  against  the  officer,  to  enforce  a  forfeiture  for 
sellino-  w^ithout  the  prescribed  notice.  (Askew  v. 
Ebberts,  22  Cal.  263.) 

§  693  of  the  Code  of  Civil  Procedure,  relating  to 
recovery  of  penalty  for  officer  selling  real  property 
under  execution  without  notice,  does  not  apply  to  the 
purchaser  at  execution  sale  without  notice.  Such 
purchaser  is  not  the  "aggrieved  party"  within  the 
meaning  of  the  section.  The  pardes  to  the  execution 
are  the  "aggrieved  pardes."  (Kelly  v.  Desmond, 
opinion  filed  June  15,  1883.) 

§  230.  Setting  Aside  Sheriff's  Sale.— A  court 
of  equity  will  not  set  aside  a  sheriff's  sale,  and  a  deed 
executed  under  it  in  a  collateral  action  commenced  for 
that  purpose,  by  reason  of  irregularities  in  the  conduct 


2  75  LEVY  UPON  REAL  PROPERTY,    §§  23 1-2 33 

of  the  officer  in   making-  the  levy  and  sale.      (Boles 
et  al.  V.  Johnson,  23  Cal.  226, 

§231.  Irregularities  of  Sale  —  Remedy.  —  If 
parties  have  any  remedy  under  such  circumstances,  it 
is  by  motion  properly  made  in  the  court  where  the 
judgment  was  rendered,  to  set  aside  the  sale.     Id. 

§  232.  When  and  How  Real  Property  Must 
be  Sold. — All  sales  of  real  property  under  execution, 
as  in  the  case  of  personal  property,  must  be  made  at 
auction  to  the  highest  bidder  between  the  hours  of 
nine  and  five,  and  after  sufficient  property  has  been 
sold  to  satisfy  the  writ  in  the  officer's  hands,  no  more 
can  be  sold.  When  the  property  consists  of  several 
known  lots  or  parcels,  they  must  be  sold  separately; 
or  when  a  portion  of  the  property  is  claimed  by  a  third 
person,  and  he  requires  it  to  be  sold  separately,  such 
portion  must  be  thus  sold.  The  judgment  debtor,  if 
present  at  the  sale,  may  also  direct  the  officer  as  to 
the  order  in  which  the  various  lots  or  parcels  shall  be 
sold,  if  they  can  be  sold  to  advantage  separately. 

§  233.  Levy  upon  Land,  When  Irregular. — 
When  the  judgment  debtor  has,  or  claims;  an  interest 
in  only  a  small,  well-defined  parcel  of  a  much  larger 
tract  of  land,  it  is  extremely  irregular,  to  say  the 
least,  to  levy  the  execution  on  his  interest  in  the 
general  tract  instead  of  the  particular  parcel  he 
claims.  There  is  a  strong  presumption  that  upon 
an  irregular  levy  of  this  character,  and  a  threatened 
sale  under  it,  the  owner  in  possession  of  the  larger 
tract  would   be  entitled  to  enjoin  the  sale,  except  of 


§  233  LKVV  UPON  REAL  PROPERTY.  276 

the   smaller  parcel   claimed   by  the  judg-ment  debtor. 
(Logan  V.  Hale,  42  Cal.  645.) 

A  sale  in  mass,  of  real  estate  consisting-  of  several 
known  and  distinct  parcels,  at  a  price  greatly  below 
the  actual  value  of  the  property  cannot  be  sustained 
against  the  objection  of  the  judgment  debtor.  Such 
sales  are  not  absolutely  void,  but  are  voidable,  and 
will  be  set  aside  upon  reasonable  and  proper  applica- 
tion, when  there  is  reasonable  ground  for  belief  that 
they  were  less  beneficial  to  the  creditor  or  debtor 
than  they  would  have  been  had  a  different  mode  been 
pursued.  (City  and  County  of  San  Francisco  v.  Pix- 
ley,  ei  al.,  21  Cal.  57.)  In  the  case  just  cited,  the 
sheriff  sold  a  tract  of  land  belonging  to  the  corporation, 
one  mile  in  length  and  half  a  mile  in  width,  which 
had,  long  previous  to  the  sale,  been  laid  out  into 
blocks  and  streets,  and  marked  upon  the  official  map, 
and  sold  the  same  in  mass,  for  $360,  while  the  actual 
value  was  $75,000.  The  sale  was  set  aside  on  ac- 
count of  the  manner  in  which  it  had  been  made. 

Such  sales  are  against  the  express  direction  of  the 
statute.  Many  persons  might  be  disposed  to  bid  for 
separate  parcels  of  a  particular  tract,  who  have  neither 
the  wish  nor  the  means  to  acquire  the  whole  tract. 

If  a  sheriff,  by  virtue  of  an  execution,  levies  on  and 
advertises  fbr  sale  separate  tracts  of  land,  he  must 
sell  the  tracts  separately  and  not  in  mass.  If  he  sell 
in  mass,  the  defendant  has  his  remedy  by  motion  to 
set  aside  the  sale  on  notice  to  the  judgment  creditor, 
sheriff,  and  purchaser  at  the  sale.  To  uphold  a  sale 
in  mass  would  be  to  deprive  the  judgment  debtor  of 
his  right  to  redeem  any  one  of  the  separate  parcels. 
§  694  of  the  Code  of  Civil  Procedure  makes  it  manda- 
tory on   the   officer  to   sell   real   property  separately 


2  77  LEW  UPON  REAL  PROPERTY.  §  233 

where  it  is  in  several  known  lots  or  parcels.  Fre- 
quently, at  sheriff's  sales,  property  consisting  of 
separate  parcels  are  sold  in  mass  by  agreement  of 
the  plaintiff  and  defendant  in  the  execution,  and 
where  such  sales  are  made,  the  defendant  is  estopped 
from  complaining.  It  is  not  always  a  safe  plan  to 
pursue,  however,  as  the  judgment  debtor  in  the  exe- 
cution may  have  other  creditors  who  would  be  injured 
by  such  a  course. 

A  sale  of  real  property  in  mass  is  therefore  voidable, 
and  will  be  set  aside  upon  a  proper  application  of  the 
judgment  debtor,  when  made  in  reasonable  time  after 
the  sale.      Such  a  sale,  however,  is  not  void,  and  will 
not  be  set  aside  if  the  application  is  not  made  within 
a    reasonable    time.        It  was  held,    in   Yigoureux  v. 
Murphy,   54  Cal.  346,  that  where  in  such  a  case  the 
application   to   avoid   the   sale   was   made   more    than 
three  years  after  the  sale,  by  a  cross-complaint  to  an 
action  of  ejectment  brought  by  the  successor  of  the 
purchaser — that  the  application  came  too  late,  though 
the  sale  should  have  been  vacated  had  the  application 
been  made  immediately  on  the  return  by  the  sheriff, 
and  perhaps  if  it  had  been  made  within  the  time  allowed 
for  redemption.       A  sale  in  mass,  at  a  price  greatly 
below    the    actual   value   of  the   property,    cannot  be 
sustained  against  the  objection  of  the  judgment  debtor. 
In  San  Francisco  v.  Pixley,  21    Cal.  57,   and  Page  v. 
Randall,  (y  Id.  32,  it  is  declared  that  such  sales  are  not 
void,   but  are  voidable,  and  will  be  set  aside  upon  a 
proper   application    by    the    judgment    debtor,   when 
made  in  a  reasonable  time  after  such  sale,  where  there 
is  ground  in  reason  for  belief  that  it  was  less  beneficial 
to  the  judgment  creditor  or  debtor  than  it  would  have 
been  had  the  sale  been  made  of  the  separate  parcels. 


§§  234-236  I'KVY  UPON   REAL  PROPERTY.  278 

Where  the  land  sold  under  execution  consisted  of 
separate  but  adjoining  tracts,  but  the  sheriff  and  pur- 
chaser were  ignorant  of  the  subdivisions,  and  the 
defendant  failed  to  inform  the  sheriff  of  the  fact,  or  to 
direct  a  sale  by  parcels  :  Held,  that  the  sale  of  the 
land,  in  gross,  was  valid.      (Smidi  v,  Randall,  6   Cal. 

57.) 

§  234.  Purchaser  at  Sheriff's  Sale. — In  an  action 
against  a  purchaser  at  sheriff's  sale,  for  not  paying  the 
amount  of  his  bid,  it  cannot  be  set  up  in  defense,  that 
no  sufficient  nodce  of  the  sale  was  given.  If  such  be 
the  fact,  the  recourse  of  the  purchaser  is  against  the 
sheriff.      (Harvey  v.  Fisk,  9  Cal.  94.) 

§  235.  Title  Under  Sheriff's  Certificate  of 
Sale. — The  purchaser  of  real  property  at  a  sheriff's 
sale,  who  receives  the  sheriff's  cerdficate  of  purchase, 
has  not  a  tide  to  the  property,  but  a  lien  on  the  same. 
(Baber  v.  McClellan,  30  Cal.  136.)  The  effect  of  such 
cerdficate  is  spent  when  the  defendant  in  the  judgment 
redeems. 

§  236.  Sheriff's  Sales  not  Credit  Sales.— A  pur- 
chaser at  a  sheriff's  sale  acquires  no  right  whatever 
against  the  sheriff  for  property  sold,  unless  at  the  dme 
of  the  sale  he  pays  down  in  cash  the  whole  of  the 
purchase  money.  A  sheriff,  by  our  laws,  in  selling 
property  under  execudon,  is  not  bound  to  receive  any 
bid,  except  for  cash  on  the  whole  amount  of  the  sale ; 
and  having  received  a  bid  with  but  a  pordon  of  the 
purchase  money  paid  at  the  time,  he  may  disregard  the 
bid,  and  offer  the  property  again  for  sale,  if  the  balance 
of  the  purchase  money  is   not  paid  before  the   return 


2  79  LEVY  UPON  REAL  PROPERTY.    §§  237,  238 

day  of  the  execution.  A  sheriff  is  not  bound  to  demand 
the  purchase  money  before  setting  aside  the  bid,  but 
the  delay  of  the  purchaser  until  the  return  day  of  the 
execution  to  pay  the  balance  due,  will  be  construed 
into  a  refusal  on  his  part  to  pay  the  amount  of  his  bid 
upon  the  property.      (People  v.  Hays,  5  Cal.  74.) 

§  237.  Relief  of  Purchaser.  —  Where  a  party 
purchased  real  estate  at  an  execution  sale  upon  the 
faith  of  the  representations  of  the  judgment  creditor, 
that  his  judgment  was  the  first  on  the  property, 
when,  in  fact,  there  were  prior  incumbrances  on  it  of 
more  than  its  value:  Held,  that  the  purchaser  should 
be  relieved,  and  the  judgment  creditor  should  be 
estopped  from  claiming  an  advantage  resulting  from 
his  own  misrepresentations.  It  makes  no  difference 
whether  the  misrepresentations  were  made  wilfully  or 
ignorantly,  or  that  the  action  against  the  purchaser 
was  brought  in  the  name  of  the  sheriff.  Ordinarily, 
the  maxim  of  caveat  emptor  applies  to  judicial  sales, 
but  it  has  many  limitations  and  exceptions.  (Webster 
V.  Haworth,  8  Cal.  21.) 

In  a  proceeding  by  motion  under  §  695,  C.  C.  P.,  to 
compel  payment  by  a  delinquent  purchaser  at  judicial 
sale,  the  statement  of  the  sheriff  upon  which  the  mo- 
tion is  based,  need  not  state  in  terms  that  "loss  was 
occasioned"  by  a  failure  to  pay  the  amount  bid.  It  is 
not  necessary  to  use  the  precise  language  of  the  stat- 
ute. An  averment  of  the  amount  bid  and  a  re-sale 
at  a  specified  smaller  amount  is  sufficient.  (Johns  v. 
Trick,  22  Cal.  512.) 

§  238.  Insufficient  Notice  no  Defense. — In  an 
action   against  a  purchaser  at   sheriff's   sale   for   not 


§§  -39--4^  LEW  UPON  REAL  PROPERTY.  280 

paying  tht-  amount  of  liis  bid,  it  cannot  be  set  up  in 
his  defense  that  no  sufficient  notice  of  the  sale  was 
given.  If  such  be  the  fact,  the  recourse  of  the  pur- 
chaser is  against  the  sheriff      (Harvey  z>.  Fisk,  9  Cal. 

93-) 

§  239.  Relief  in  Discretion  of  the  Court. — The 
nature  and  extent  of  the  relief  in  such  case  are  matters 
resting  very  much  in  the  sound  discretion  of  the  court. 
As  a  general  rule,  the  purchaser  will  be  released  and 
a  re-sale  ordered,  or  such  new  or  additional  proceed- 
ings directed  as  may  obviate  the  objections  arising 
from  those  originally  taken,  when  the  consequences 
of  the  mistake  are  such  that  it  would  be  inequitable, 
either  to  the  purchaser  or  to  the  parties,  to  allow  the 
sale  to  stand.  But  when  relief  is  sought  in  one  ac- 
tion from  a  purchase  made  upon  a  mistake  of  law  as 
to  the  effect  of  a  decree  rendered  in  another  action, 
it  seems  that  the  ordinary  rules  as  to  mistakes  of  law 
should  apply ;  and  from  such,  courts  of  equity  seldom 
relieve.      (Goodenow  v.  Ewer,  16  Cal.  461.) 

§  240.    When  cannot  Recover  Amount  of  Bid. — 

Held,  also,  that  plaintiffs  cannot  be  reimbursed  in  the 
amount  bid,  even  though  they  acted  under  a  mistake 
as  to  the  effect  of  the  decree  and  sale  thereunder;  that 
their  mistake  was  one  of  law,  against  which  courts  of 
equity  seldom  relieve  in  an  independent  action — the 
weight  of  authority  in  the  United  States  being  not  to 
relieve,  unless  the  mistake  be  accompanied  with  spe- 
cial circumstances,  such  as  misrepresentations,  undue 
influence,  or  misplaced  confidence.     Id. 

§  241.     Where  Misrepresentation  was  Used. — 


28 1  LEVY  UPON  REAL  PROPERTY.  §  242 

Where  a  party  purchased  real  estate  at  an  execution 
sale,  upon  the  faith  of  the  representations  of  the 
judgment  creditor  that  his  judgment  was  the  first  on 
the  property,  when  in  fact  there  were  prior  incum- 
brances on  it  more  than  its  value :  Held,  that  the  pur- 
chaser should  be  relieved,  and  the  judgment  creditor 
should  be  estopped  from  claiming  an  advantage  result- 
ing from  his  own  misrepresentations.  (Webster  v. 
Haworth,  8  Cal.  21.) 

§  242.  The  Doctrine  of  Caveat  Emptor  applies 
only  to  sales  made  upon  valid  judgments,  and  is  usually 
invoked  with  reference  to  sales  upon  execution  issued 
against  the  general  property  of  a  judgment  debtor. 
In  these  latter  cases,  a  defect  of  title  is  no  ground  for 
interference  with  the  sale,  or  a  refusal  to  pay  the  price 
bid.  The  purchaser  takes  upon  himself  all  the  risks 
as  to  the  title,  and  bids  with  full  knowledo-e  that  in 
any  event  he  only  acquires  such  interest  as  the  debtor 
possessed  at  the  date  of  the  levy,  or  the  lien  of  the 
judgment,  and  that  he  may  possibly  acquire  nothing. 
(Boggs  V.  Hargrave,  16  Cal.  559.) 

A  somewhat  different  rule  prevails  in  cases  where 
particular  property  is  the  subject  of  sale  by  a  specific 
adjudication,  as  where  the  interest  of  A.,  in  a  certain 
tract,  is  decreed  to  be  sold.  To  the  validity  of  a  decree 
of  this  character,  the  presence  of  A.  is  essential ;  and 
where  present,  the  decree  binds  him,  and  is  effectual, 
by  the  sale  it  orders,  to  transfer  his  estate.  A  valid 
decree  in  a  mortgage  case  operates  upon  such  interest 
as  the  mortgagor  possessed  in  the  property  at  the 
execution  of  the  mortgage.  That  interest  may  not 
constitute  a  valid  title — it  may  not,  in  fact,  be  of  any 
value,    and    the   purchaser  takes  that   risk.     To   that 


§§   243-246  I.KVV  UPON  REM.  PROPERTY.  282 

extent,  the  doctrine  of  caveat  emptor  applies  even  in 
those  cases,  and  in  all  cases  of  adjudication  upon  spe- 
cific interests,  but  no  further.  The  interest  specifically 
subject  to  sale,  whatever  it  may  be  worth,  a  purchaser 
is  entitled  to  receive  ;  it  is  for  that  interest  he  makes 
his  bid  and  pays  his  money.     Id. 

§  243.  Recovery  from  Bidder. — If  a  purchaser 
refuse  to  pay  the  amount  bid  by  him  for  property  struck 
off  to  him  at  a  sale  imder  execution,  the  officer  may 
again  sell  the  property  at  any  time  to  the  highest  bidder, 
and  if  any  loss  be  occasioned  thereby,  the  officer  may 
recover  the  amount  of  such  loss,  with  costs,  from  the 
bidder  so  refusing,  in  any  court  of  competent  jurisdic- 
tion.     (§  695,  C.  C.  P.) 

§  244.  Time  of  Re-sale. — If  the  refusal  to  pay 
the  amount  of  the  bid  is  made  at  the  time  of  the  sale, 
the  property  may  be  offered  for  sale  again  at  once,  if 
there  are  other  bidders  present.  But  if  the  officer 
learns  of  the  refusal  to  make  the  payment  after  the 
time  fixed  for  the  sale  has  passed,  notices  of  re-sale 
should  be  posted,  and  the  property  re-advertised,  as 
per  §  692,  C.  C.  P. 

§  245.  A  Mandamus  will  not  Lie  to  compel  a 
sheriff  to  make  a  deed  of  land  to  a  purchaser  at  execu- 
tion sale,  who  refuses  to  pay  the  purchase  money,  on 
the  ground  that  he  is  entitled  to  it  as  oldest  judgment 
and  execution  creditor,  especially  when  there  is  an 
unsettled  contest  as  to  the  priority  of  his  lien.  (Wil- 
liams V.  Smith,  6  Cal.  91.) 

§  246.  Title  of  Purchaser  of  Leasehold  In- 
terest.— Upon  a  sale  of  real  property,   the  purchaser 


283  LEVY  UPON  REAL  PROPERTY.    §§  247,  248 

is  substituted  to  and  acquires  all  the  right,  title, 
interest,  and  claim  of  the  judgment  debtor  thereto  ; 
and  when  the  sale  is  less  than  a  leasehold  of  two 
years'  unexpired  term,  the  sale  is  absolute.  In  all 
other  cases,  the  property  is  subject  to  redemption, 
as  provided  in  the  Code  of  Civil  Procedure.  (§  700, 
C.  C.  P.) 

§  247.      Proceedings    against    Corporations.  — 

§  1397  of  the  Penal  Code  provides  that  "when  a  fine 
is  imposed  upon  a  corporation  on  conviction,  it  may 
be  collected  by  virtue  of  the  order  imposing  it,  by 
the  sheriff  of  the  county,  out  of  its  real  and  personal 
property,  in  the  same  manner  as  upon  an  execution 
in  a  civil  action." 

§  248.  Title  of  Purchaser  Generally. —  A  pur- 
chaser at  sheriff's  sale  does  not  acquire  title,  but  only 
a  lien,  until  after  the  period  limited  for  redemption. 
The  statute  of  this  State,  allowing  a  redemption  of 
real  property  sold  at  judicial  sales,  plainly  contemp- 
lates that  the  possession  shall  not  change  to  the 
purchaser  until  the  expiration  of  the  time  prescribed 
as  a  limit  to  the  redemption.  §  564,  C.  C.  P.,  pro- 
vides that  "a  receiver  may  be  appointed  in  certain 
contingencies  ;  the  court  may  also  restrain  the  com- 
mission of  waste  on  the  property  ;  "  and  it  is  further 
provided  that  "it  shall  not  be  deemed  waste  for  the 
person  in  possession  of  the  property  at  the  time  of 
the  sale,  or  entitled  to  possession  afterwards,  during 
the  period  allowed  for  redemption,  to  continue  to 
use  it  in  the  same  manner  in  which  it  was  previously 
used."  These  provisions  most  clearly  contemplate 
an  adverse  possession  to  the  purchaser  until  the 
time  has  expired  for  redemption. 


§§  249>  250    LEVY  UPON  REAL  PROPERTY.  284 

A  sheriff,  under  an  execution  issued  on  a  judcrment, 
whicli  is  not  a  lien,  can  only  seize  and  sell  such  title 
and  interest  as  the  judgment  debtor  had  in  the  land  at 
the  time  of  the  levy,  and  such  as  he  acquired  between 
the  time  of  the  levy  and  the  sale. 

If,  after  the  levy  of  an  execution  by  the  sheriff,  on 
public  land,  and  before  the  sale,  the  judgment  debtor, 
being  preemptioner,  pays  for  the  land  levied  on,  and 
obtains  a  certificate  of  purchase,  the  purchaser  at  the 
sheriff's  sale  succeeds  only  to  the  equitable  title  of  the 
judgment  debtor,  who,  when  he  obtains  the  legal  title 
by  means  of  the  patent,  holds  it  in  trust  for  the  pur- 
chaser at  the  sheriff's  sale.  (Kenyon  :'.  Ouinn,  41 
Cal.  325.) 

§  249.  Title  of  Purchaser  not  Dependent  on 
Sheriff's  Return. — The  title  of  a  purchaser  of  real 
estate  at  sheriff's  sale  does  not  depend  upon  the  return 
of  the  officer  to  the  writ.  The  purchaser  has  no  con- 
trol over  the  conduct  of  the  officer  in  this  respect. 
(Cloud  z>.  El  Dorado  Co.,  12  Cal.  129.)  While  It  is 
undoubtedly  the  duty  of  the  sheriff  to  make  a  return, 
and  while  It  is  important  as  evidence  of  a  permanent 
and  authentic  character  that  he  should  do  so,  the  title 
of  the  purchase  does  not  depend  upon  his  performance 
of  this  duty.  The  purchaser  rests  for  title  upon  the 
judgment,  execution,  levy,  sale,  and  deed  ;  and  he  need 
show  no  more  to  entitle  him  to  whatever  rights  the 
defendant  in  execution  had  in  the  property  sold.  The 
authorities  are  uniform,  we  believe,  on  this  subject. 

§  250.  When  Owner  is  Estopped  from  Assert- 
ing Title. — It  Is  a  well  settled  rule  of  all  courts  of 
equity,  that  the  owner  of  land  who  stands  by  and  sees 


285  LEVY  UPON  REAL  PROPERTV.    §§  25  I,  252 

another  sell  it,  without  making  known  his  claim,  is  for- 
ever estopped  from  setting  up  his  title  against  an  inno- 
cent purchaser.  In  strict  analogy  to  this  rule,  it  is 
also  a  familiar  principle,  that  one  who  knowingly  and 
silently  permits  another  to  expend  money  on  land, 
under  a  mistaken  impression  that  he  has  title,  will  not 
be  permitted  to  set  up  his  right.  (Godeffroy  v.  Cald- 
well, 2  Cal.  492.) 

§  251.  Certificate  of  Sale — Upon  the  sale  of  real 
property  under  execution,  the  officer  must  give  to  the 
purchaser  a  certificate  of  sale,  containing:  i.  A  par- 
ticular description  of  the  real  property  sold;  2.  The 
price  bid  for  each  distinct  lot  or  parcel ;  3.  The  whole 
price  paid ;  4.  When  subject  to  redemption,  it  must 
be  so  stated.  And  when  the  judgment,  under  which 
the  sale  has  been  made,  is  made  payable  in  a  speci- 
fied kind  of  money  or  currency,  the  certificate  must 
also  show  the  kind  of  money  or  currency  in  which 
such  redemption  may  be  made,  which  must  be  the 
same  as  that  specified  in  the  judgment.  A  duplicate 
of  such  certificate  must  be  filed  by  the  officer  in  the 
office  of  the  recorder  of  the  county.     (§  700,  C.  C.  P.) 

§  252.  Cloud  on  Title. — An  officer  is  bound  to 
levy  upon  the  defendant's  interest  in  real  estate,  when 
instructed  to  do  so,  even  though  the  records  may 
show  prima  facie  that  the  defendant  has  transferred 
his  interest  in  the  property  to  a  third  party.  But  the 
party  who  has  succeeded  to  that  interest  may  have 
his  remedy.  There  are  numerous  decisions  in  our 
own  courts,  declaring  the  right  of  the  party  injured 
by  such  a  cloud  upon  title  to  his  remedy.  In  Pixley 
V.  Huggins,  15  Cal.  129,  it  is  held  that  a  deed  from  a 


§  2  53  LEW  UPON  REAL  PROPERTY.  286 

sheriff  upon  an  execution  sale  against  the  vendor  of 
plaintiff  would  have  the  same  effect  in  casting  a  cloud 
upon  the  title,  as  if  the  deed  were  made  directly  by 
such  vendor.  Such  a  deed  from  the  sheriff,  put  on 
record,  would  create  doubts  as  to  the  validity,  as 
against  the  judgment  creditor,  of  the  previous  trans- 
fer to  plaintiff. 

The  jurisdiction  of  a  court  to  enjoin  a  sale  of  real 
estate  is  co-extensive  with  its  jurisdiction  to  set  aside 
and  order  to  be  canceled  a  deed  of  such  property. 
It  is  not  necessary  for  its  assertion  in  the  latter  case 
that  the  deed  should  be  operative,  if  suffered  to  re- 
main uncanceled,  to  pass  the  title,  or  that  the  defence 
to  the  deed  should  rest  in  extrinsic  evidence,  liable  to 
loss,  or  be  available  only  in  equity.  It  is  sufficient  to 
call  into  exercise  the  jurisdiction  of  the  court  that  the 
deed  casts  a  cloud  over  the  title  of  the  plaintiff.  As 
in  such  case,  the  court  will  remove  the  cloud,  by 
directing  a  cancelation  of  the  deed,  so  it  will  inter- 
fere  to  prevent  a  sale,  from  which  a  conveyance  cre- 
ating such  a  cloud  must  result.  Where  property 
rights  are  thus  involved,  the  officer  may  resort  for  his 
protection  to  proceedings  provided  for  in  §  689.  Code 
Civil  Procedure,  and  secure  indemnity. 

§  253.  Levy  on  Homestead  Void. — The  sheriff 
of  Calaveras  county  was  sued  on  his  official  bond  for 
selling  under  execution  against  J.  Kendall  certain 
property  claimed  by  plaintiff,  as  a  homestead.  The 
Suprenie  Court  decided,  in  10  Cal.  16,  that  no  damage 
had  or  could  result  from  such  a  sale.  If  the  property 
sold  was  a  homestead,  the  sheriff's  deed  conveyed 
nothing.  The  purchaser  at  such  .sale  could  acquire  no 
right  to  the  property,  nor  could  the  plaintiff  suffer  any 
injury. 


28/  LEVY  UPON  REAL  PROPERTY.         §§   254-257 

§  254.  Cloud  on  Title  of  Homestead. — The 
rio-ht  of  homestead  having  once  attached,  and  not  having 
been  aHenated,  a  deed  from  the  sheriff,  under  an  ex- 
ecution against  the  husband,  would  be  a  cloud  upon 
the  title,  and  prevent  the  free  alienation  of  the  prop- 
erty by  the  husband  and  wife.  (Dunn  v.  Tozer,  lo 
Cal.  167.) 

Where  a  homestead  is  sold  by  the  sheriff,  on  an 
execution  against  the  husband,  or  husband  and  wife, 
and  a  deed  given  to  the  purchaser  therefor,  it  is  a  cloud 
upon  the  title,  and  a  court  of  equity  will  remove  it. 
(Riley  z'.  Phel  and  wife,  23  Cal.  71.) 

§  255.  When  Sale  may  be  Enjoined. — A  sale 
by  a  sheriff,  of  real  estate,  upon  an  execution  against 
the  grantor,  will,  even  if  not  effectual  to  pass  the  title 
to  the  purchaser,  create  a  doubt  as  to  the  validity  of 
the  grantee's  title,  and  cast  a  cloud  upon  it,  and  the 
grantee  can  maintain  an  action  to  enjoin  the  sale. 
(England  v.  Lewis,  25  Cal.  338.) 

§  256.  How  Homestead  may  be  Levied 
upon. — There  is  no  lien  of  the  judgment  upon  a  home- 
stead until  the  levy  of  an  execution  ;  and  that  levy 
creates  no  lien,  except  for  the  purpose  of  and  as  a  foun- 
dation for,  instituting  and  carrying  on  proceedings  to 
have  an  appraisement  and  sale  under  the  statute.  The 
homestead  (except  in  the  cases  enumerated  in  §  1241, 
Civil  Code),  no  matter  what  may  be  its  actual  value, 
cannot  be  subjected  to  execution  or  forced  sale,  except 
in  the  manner  pointed  out  in  §§  1245,  1259,  Civil 
Code. 

§  257.     Sale  of  Homestead. — A  sale  by  a  sheriff, 


§§  258,  259    ^-EVY  UPON  REAL  PROPERTY.  288 

under  execution,  of  a  house  claimed  as  a  homestead 
by  the  defendant  in  execution,  and  ascertained  by  ap- 
praisement to  be  worth  over  $5000,  should  not  be  made 
until  an  exact  appraisement  of  the  value  of  the  prem- 
ises is  obtained,  so  that  the  sheriff  can  convey  a  defi- 
nite fracdonal  undivided  interest  therein. 

It  follows  that  a  deed  of  the  premises  claimed  as  a 
homestead,  given  by  the  sheriff  to  the  purchaser  at 
the  execution  sale,  for  the  excess  of  value  of  the 
premises  over  $5000,  conveys  an  undefined  and  un- 
certain interest,  upon  which  the  purchaser  cannot 
maintain  an  action  for  possession  and  7nesne  profits. 

The  quesdon  as  to  whether  buildings  used  for 
hotels,  stores,  etc.,  are  suscepdble  of  dedication  for 
homestead  purposes  is  reserved.  (Gary  v.  Estabrook, 
6  Cal.  480.) 

§  258.  When  Judgment  is  not  a  Lien. — Where 
a  homestead  was  declared  after  an  attachment  on  the 
land  and  a  judgment  in  a  Jusdce's  Court,  but  no  ab- 
stract had  been  filed  or  recorded  in  the  recorder's 
office,  it  was  held  (Wilson  v.  Madison,  58  Cal.  i), 
that  at  the  time  of  the  declaradon  of  homestead,  the 
judgment  did  not  consdtute  a  lien  upon  the  premises 
within  §  1 241  of  the  Civil  Code,  and  a  sale  under  the 
judgment  conveyed  no  title. 

§  259.  Judgment  no  Lien  upon  Homestead. — 
In  this  State,  a  judgment  cannot  become  a  lien  upon 
the  homestead.  It  can  become  a  lien  only  upon  the 
real  property  of  the  judgment  debtor,  which  is  not 
exempt  from  execution.  (Bowman  v.  Norton,  16  Cal. 
214.) 


289  LEVY  UPON  REAL  PROPERTY.  §  260 

§  260.  Return  of  Writ. — An  execution  should  not 
be  returned  until  the  return  day  indicated  in  the  writ, 
except  upon  written  instructions  from  the  plaintiff  or 
plaintiff's  attorney.  An  officer's  return  on  process  of 
every  kind  should  state  that  he  has  performed  what 
the  mandatory  part  of  the  process  required  of  him. 
It  should  be  a  report  of  his  proceedings,  and  should 
contain  a  statement  of  the  acts  which  he  has  done 
under  and  by  virtue  of  it,  and  the  place  and  the  time 
when  and  where  they  were  done.  The  office  is  merely 
ministerial.  Hence  it  is  insufficient  for  him  to  return 
that  he  has  duly  or  legally  served  the  process  com- 
mitted to  him. 


19 


CHAPTER  X. 

FORECLOSURE. 

§  261.     Sales  under  Foreclosure. 

§  262.     Title  Conveyed  by  Foreclosure  Sale. 

§261,     Sales  under  Foreclosure. — It  is  not  neces- 
sary that  a  sheriff  should  go  upon  the  land  to  make  a 
formal  levy  under  a  decree  of  foreclosure  and  order  of 
sale  of  real  property.     The  officer  must  post  written 
notice  of  the  time  and  place  of  sale,  particularly  describ- 
ing the  property,  as  the  description   is   given  in  the 
decree,  for  twenty  days,  in  three   public  places  of  the 
township  or  city  where  the  property  is  situated,  and  also 
where  the  property  is  to  be  sold  (all  sales  of  real  prop- 
erty must  be  made  before  the  court-house  door  of  the 
county)  and  publishing  a  copy  thereof  once  a  week  for 
the  same  period,  in  some  newspaper  published  in  the 
county,  if  there  be  one.     The   notices  must  state  the 
kind  of  money  in  which  bids  must  be  made,  as  specified 
in  the  judgment.     The  course  of  procedure  in  selling 
property  under  foreclosure  is   the   same  as  that  pro- 
vided for  sales  under  writs  of  execution  issued  against 
the   property   of  the  judgment  debtor.     The   sheriff 
should  make  his  return  as   soon  as  the  sale,  delivery 
and  filing  of  the  certificate  of  sale  are  accomplished,  to 
enable  the  plaintiff  to  have  docketed  any  deficiency  that 
may  exist  against  the  judgment  debtor.     The  plaintiff, 
in  most  cases,  is  entitled  to  an  execution  for  the  defi- 
ciency, and  any  undue  delay  in  making  the  return,  may 
entail  loss  upon  the  plaintiff,  for  which  the  sheriff  would 
be  responsible. 


291  FORECLOSURE.  §  262 

As  a  personal  judgment  cannot  be  docketed  against 
the  defendant,  in  a  suit  for  foreclosure  of  a  morto-ao-e, 
until  it  is  ascertained  by  the  sheriff's  return  that  a  bal- 
ance remains  due,  the  officer  should  use  no  unneces- 
sary delay  in  making  bis  return.  If  the  judgment 
debtor  has  no  other  property  that  may  be  levied  upon, 
the  plaintiff  may  expect  such  promptness  on  the  part 
of  the  officer  as  will  enable  him  to  secure  the  remainder 
of  his  judgment,  if  it  can  be  made. 

The  well-established  rules  in  equity  proceedings 
require  in  foreclosure  cases,  not  only  that  the  property 
should  be  sold  in  parcels,  but  that  the  property  included 
in  the  first  mortgage  should  be  exhausted  before  re- 
course is  had  to  the  second.  (Raun  v.  Reynolds,  1 1 
Cal.  14.) 

A  sheriff  has  no  authority  to  make  a  sale  of  mort- 
gaged premises  under  a  judgment  of  foreclosure  and 
sale,  unless  an  order  of  sale  is  issued  upon  the  judg- 
ment and  placed  in  his  hands.  (Heyman  v.  Bab- 
cock,  30  Cal.  367.) 

A  second  order  of  sale  may  issue,  if  the  first  order 
of  sale  be  not  executed.  Such  second  order  mieht 
in  some  cases  be  ground  of  objection  on  the  score 
of  costs,  but  it  is  not  objectionable  as  affecting  the 
validity  of  the  sale.  (Shores  v.  Scott  River  Water 
Co.,  17  Cal.  626.) 

§  262.     Title  Conveyed  by  Foreclosure  Sale. — 

A  sale  by  the  sheriff  under  a  judgment  in  a  fore- 
closure suit,  directing  a  sale  of  all  the  defendant's 
right,  title,  and  interest  in  the  mortgaged  premises, 
carries  all  the  title  which  the  defendant  had  in  the  prem- 
ises at  the  time  of  the  institution  of  the  foreclosure  pro- 
ceedings.    (Hutchings  v.  Ebeler,  46  Cal,  557.) 


CHAPTER  XI. 


REDEMPTION. 


§  263.  Power  of  Sheriff  in  Redemption. 

§  264.  When  Title  Passes. 

§  265.  Who  may  Redeem. 

§  266.  Though  Defendant  has  Conveyed  to  Another,  he  may 
Redeem. 

§  267.  Time  of  and  Payment  in  Redemption. 

§  268.  Judgment  Debtor  not  to  Pay  Prior  Liens. 

§  269.  When  Deficiency  on  Judgment  need  not  be  Paid  in  Re- 
demption. 

§  270.  Status  of  Redemptioner. 

§  271.  Subsequent  Judgment  Lien. 

§  272.  When  Judgment  Debtor  or  Redemptioner  may  Redeem. 

§  273.  How  Redemptioner  may  Redeem. 

§  274.  Other  Redemptioners. 

§  275.  Who  cannot  Redeem. 

§  276.  Redemption  where  Tenants  in  Common. 

§  277.  Rights  of  Creditors. 

§  278.  Rents  and  Profits  in  Redemption. 

§  279.  Rights  of  Purchasers. 

§  280.  Rights  of  Mortgagor. 

§  281.  Redemption  of  Real  Estate  of  a  Decedent. 

§  282.  Change  from  Real  to  Personal  Property. 

§  283.  Costs  of  Appeal  in  Redemption. 

§  284.  Payments  in  Redemption. 

§  285.  Redemption  in  Treasury  Notes. 

§  286.  What  Money  Sheriff  may  Receive  in  Redemption. 

§  287.  Withdrawing  Redemption  Money  Defeats  Redemption. 

§  288.  Payment  under  Protest. 

§  289.  The  Sheriff's  Deed. 


293  REDEMPTION.  §§   263-265 

§  263.  The  Power  of  the  Sheriff  in  relation  to 
redemption  is  purely  statutory,  and  his  acts  are  nuga- 
tory unless  the  provisions  of  the  statute  are  pursued. 
Who,  and  how  they  may  redeem,  is  set  forth  in  §§  701, 
702,  703,  704  and  705,  Code  of  Civil  Procedure.  The 
simplest  manner  in  which  redemption  may  be  effected, 
is  through  the  purchaser,  if  he  will  recognize  the  right 
of  the  applicant  to  redeem  and  waive  the  usual  formal- 
ities, by  paying  to  such  purchaser  the  redemption 
money  and  receiving  from  him  the  requisite  transfer. 
But  if  the  redemption  is  sought  to  be  made  through 
the  officer  who  made  the  sale,  all  the  requirements  of 
the  statute  must  be  complied  with  to  secure  the  re- 
demption. 

§  264.  When  Title  Passes. — The  statute  allow- 
ing a  redemption  of  property  sold  at  judicial  sale  con- 
templates that  the  possession  shall  not  change  to  the 
purchaser  until  the  expiration  of  the  time  limited  for 
redemption.  (Guy  v.  Middleton,  5  Cal.  392.)  The 
title  does  not  pass  until  the  execution  and  delivery  of 
the  deed.  The  legal  estate  exists  in  the  judgment 
debtor  after  expiration  of  the  time  to  redeem,  until 
execution  of  the  conveyance  to  the  purchaser. 

§  265.  Who  may  Redeem. — Property  sold  sub- 
ject to  redemption,  or  any  part  sold  separately,  may 
be  redeemed  by  the  following  persons,  or  their  succes- 
sors in  interest : 

1.  The  judgment  debtor,  or  his  successor  in  interest, 
in  the  whole  or  any  part  of  the  property  ; 

2.  A  creditor  having  a  lien  by  judgment  or  mort- 
gage on  the  property  sold,  or  on  some  share  or  part 
thereof,  subsequent  to  that  on  which  the  property  was 


§265  REDEMPTION.  294 

sold.  The  persons  mentioned  in  the  second  subdi- 
visions of  this  section  are  termed  redemptioners.  (§ 
701,  C.  C.  P.) 

The  rio-ht  to  redeem,  under  the  statute,  from  a  sale 
on  execution,  exists  in  some  instances  where  there  is 
no  equity,  and  in  other  instances  in  connection  with 
the  equitable  right.       Parties  to  the  suit  in  which  the 
judgment  is  rendered,  under  which  the  sale  is  made, 
are    restricted    to   the   six    months   given    by  statute. 
Parties   acquiring  interests   pending  suits  to   enforce 
previously  existing  liens,  or  after  judgment  docketed 
or  sale  made,  have  no  equity,  and  are  confined  to  the 
rights   given    by   the   statute ;     but  parties   obtaining 
interests  subsequent  to  the  plaintiff,  and  before  suit 
brought,  who  are  made  parties  in  such  suit,  possess 
the  equitable  and  statutory  right.       They  may  redeem 
under  this  statute,  or  they  may  file  their  bill  in  equity. 
Where  a  mechanic's  lien  attached  on  certain  premises, 
January  i8,  1856,  and  a  mortgage  was  placed  on  the 
same    premises,    January    21,    1856,   and    a  suit  was 
brought  subsequent  to  the  execution  and  record  of  the 
morto-aore,  to  enforce  the  mechanic's  lien,  in  which  suit 
the  mortgagees  were  not  made  parties,  and  under  the 
decree   rendered  in  such  suit  a  sale  was  made,  and 
after  the  expiration  of  six  months  no  redemption  being 
had,   a   deed  was   executed   to   the  assignees   of  the 
sheriff's  certificate,  it  was  held,  in  Whitney  v.  Higgins, 
10  Cal.  547,  that  the  right  of  the  mortgagees  to  redeem 
the  premises,   by  paying  off  the  incumbrance  of  the 
mechanic's  lien,  was  not  affected  by  the  decree  and 
the  proceedings  thereunder,  and  that  the  purchasers 
of  the  premises,  upon  a  decree  of  foreclosure  of  the 
mortgage,   having   received  his  deed  upon  such  pur- 
chase, were  entided  to  the  same  right  to  redeem. 


295  REDEMPTION.  §§  266,   267 

§  266.  Though  Defendant  has  Conveyed  to 
Another,  he  may  Redeem. — A  defendant  in  ex- 
ecution can  redeem  from  an  execution  sale,  notwith- 
standing he  has  conveyed  to  another,  the  property 
sold  under  execution.  (Yoakum  z>.  Bower,  51  Cal. 
539.)  §  701  of  the  Code  of  Civil  Procedure  provides 
in  terms  that  property  sold  subject  to  redemption  may 
be  redeemed  by  the  judgment  debtor  or  his  successor 
in  interest  in  the  whole,  or  any  part  of  the  property. 
The  successor  in  interest  may  redeem,  but  the  judg- 
ment debtor  may  also  do  so.  The  statute  provides 
that  the  judgment  debtor,  as  such,  may  redeem  ;  not 
that  he  may  redeem  only,  and  in  the  event,  that  he 
has  no  successor  in  interest  in  the  property  sold  under 
execution.  The  court  holds  that  there  is  no  ofood 
reason  why  the  statute,  which  is  remedial  in  its  char- 
acter, should  receive  a  narrow  construction,  in  order 
to  defeat  the  right  of  redemption  which  it  intended  to 
give.  It  might  be  that  the  judgment  debtor  has  cov- 
enanted with  his  successor  in  interest  to  effect  a 
redemption  from  the  sale,  and  a  variety  of  other  cases 
might  readily  be  imagined,  in  which  the  judgment 
debtor,  even  though  he  had  sold  the  property  would 
still  have  an  interest  in  effecting  a  redemption  from 
the  execution  sale. 

Nor  is  it  necessary  for  the  judgment  debtor,  in 
effecting  a  redemption,  to  produce  a  certificate  or 
other  credential  required  by  §  705  of  the  Code  of 
Civil  Procedure.  That  section  applies  only  to  "re- 
demptioners,"  and  these  are  only  the  persons  men- 
tioned in  the  second  subdivision  of  §  701,  and  the 
"judgment  debtor"  is  not  one  of  these. 

§  267.     Time  of  and  Payment  in  Redemption. 


§  268  REDEMPTION.  296 

§  702  of  the  Code  of  Civil  Procedure  provides  diat 
the  judgment  debtor,  or  redempdoner,  may  redeem 
the  property  from  the  purchaser  any  time  within  six 
months  after  the  sale,  on  paying  the  purchaser  the 
amount  of  his  purchase,  with  two  per  cent,  per  month 
thereon  in  addidon,  up  to  the  time  of  redemption,  to- 
gether with  the  amount  of  any  assessment  or  taxes 
which  the  purchaser  may  have  paid  thereon  after  pur- 
chase, and  interest  on  such  amount,  and  if  the  pur- 
chaser be  also  a  creditor  having  a  prior  lien  to  that  of 
the  redemptioner,  other  than  the  judgment  under 
which  such  purchase  was  made,  the  amount  of  such 
lien,  with  interest. 

§  268.  Judgment  Debtor  not  Compelled  to 
Pay  Prior  Liens. — In  the  case  of  Sharp  v.  Miller, 
6  Cal.  82,  the  court  held  that  the  judgment  debtor  is 
not  obliged  to  pay  other  liens  which  the  purchaser 
may  have  on  the  property.  The  code  makes  a  dis- 
tincUon  between  a  redemption  of  the  judgment  debtor 
and  by  a  creditor  holding  a  lien  on  the  property.  Un- 
der §  702,  Code  of  Civil  Procedure,  "the  judgment 
debtor  or  redempdoner  may  redeem  the  property 
from  the  purchaser  any  time  within  six  months  after 
the  sale,  on  paying  the  purchaser  the  amount  of  his 
purchase,"  etc.  The  same  section  further  provides, 
"that  if  the  purchaser  be  also  a  creditor,  having  a  prior 
lien  to  that  of  the  redemptioner,  other  than  the  judg- 
ment under  which  such  purchase  was  made,"  he  must 
also  pay  the  amount  of  such  lien.  §  701  defines  a 
redempdoner  to  be  "a  creditor  having  a  lien  by  judg- 
ment or  mortgage  on  the  property  sold,  or  on  some 
share  or  part  thereof,  subsequent  to  that  on  which 
the  property  was  sold."     The  judgment  debtor  is  not 


297  REDEMPTION.  §  269 

a  "redemptioner"  in  the  sense  in  which  that  term  is 
employed  in  §  702. 

But  if  a  "redemptioner,"  or,  in  other  words,  a  cred- 
itor, holding  a  subsequent  lien  on  the  property  re- 
deems, he  must  also  pay  to  the  purchaser  any  liens 
he  may  have  prior  to  that  of  the  redemptioner  other 
than  that  for  which  the  property  was  sold.  The  rea- 
son for  the  distinction  made  between  the  judgment 
debtor  and  a  redemptioner  is,  that  if  the  latter  were 
permitted  to  redeem  without  paying  the  prior  lien 
held  by  the  purchaser,  the  title  would  pass  to  the 
redemptioner  and  the  lien  of  the  purchaser  would  be 
defeated.  But  if  the  judgment  debtor  redeem,  he 
is  restored  to  his  estate,  and  the  lien  held  by  the 
purchaser  will  be  available. 

§  269.  When  Deficiency  on  Judgment  need 
not  be  Paid  in  Redemption. — Where,  upon  a  fore- 
closure of  a  mortgage,  the  mortgagee  purchases  the  land 
for  a  sum  less  than  the  amount  of  the  judgment,  and 
dockets  a  judgment  for  the  deficiency,  the  purchaser 
from  the  mortgagor  of  the  land,  pending  the  time  for 
redemption,  is  entitled  as  successor  in  interest  to 
redeem  from  the  mortgagee,  without  paying  the  amount 
of  the  deficiency.  The  former  rule,  that  when  real 
estate  which  is  subject  to  a  judgment  lien  is  sold  on 
an  execution  on  the  judgment,  to  the  judgment  cred- 
itor, for  a  sum  less  than  the  whole  amount  of  the  judg- 
ment, the  judgment  creditor  continues  to  be  "  a 
creditor  having  a  lien  "  for  the  unsatisfied  portion  of 
the  judgment  upon  the  property  sold  under  the  execu- 
tion, and  that  neither  the  judgment  debtor  or  a  redemp- 
tioner with  a  subsequent  lien  could  redeem  without 
paying  said  judgment,  has  been  changed  by  the  Code 


§   270  REDEMPTION.  298 

of  Civil  Procedure.  (Simpson  v.  Castle,  52  Cal.  645.) 
During-  the  time  for  redemption,  the  legal  title  is  in 
the  mortgagor,  and  nia)-  be  conveyed  by  him,  and  the 
grantee  becomes  entitled  to  redeem,  without  paying  to 
the  mortgagee  the  unsatisfied  portion  of  the  judgment 
under  which  the  property  was  sold  to  him,  and  the 
judgment  for  the  deficiency  is  not  a  lien  on  the  land. 
A  judgment  docketed  for  a  deficiency,  after  the  sale 
of  the  mortgaged  premises  under  a  judgment  of  fore- 
closure, is  not  a  lien  upon  the  premises  sold,  if  they 
are  purchased  by  any  person  other  than  the  mortgage 
debtor.  (Black  v.  Gerichten,  58  Cal.  56.)  In  this  case, 
the  judgment  in  the  lower  court  was  on  a  demurrer  to 
the  complaint,  which  alleged  that  in  an  action  by  the 
Commercial  Bank  of  San  Dieo-o  ao-ainst  Wm.  S.  Greofof 
el  a/.,  the  plaintiff  and  one  Luce  were  made  parties 
defendant,  and  filed  a  cross-complaint  setting  up  a 
junior  mortgage  and  paying  for  its  foreclosure  ;  that 
under  a  decree  in  that  case,  the  land  was  sold,  and  the 
older  mortgage  satisfied  ;  that  the  junior  mortgage  was 
partly,  satisfied,  and  a  judgment  docketed  for  the  defi- 
ciency ;  that  the  land  was  purchased  at  the  sale  by  the 
Commercial  Bank,  the  senior  mortgagee  ;  that  plaintiff, 
Black,  had  succeeded  to  the  rights  of  Luce  by  assign- 
ment ;  that  defendant,  Gerichten,  had  redeemeci,  as  re- 
demptioner,  from  the  purchaser,  and  that  Black  had 
offered  to  redeem  from  him. 

§  270.  To  Entitle  a  Party  to  the  status  of  a 
redemptioner,  it  must  appear  that  he  was  the  mort- 
gagor, or  judgment  debtor,  or  successor  in  interest  of 
the  judgment  debtor,  or  a  creditor  having  a  lien  by 
judgment  or  mortgage  on  the  property  sold  at  fore- 
closure sale. 


299  REDEMPTION.  §§   27 1,    272 

§  271.  Subsequent  Judgment  Lien. — The  pay- 
ment, by  a  judgment  debtor,  of  the  judgment,  after  a 
sheriff's  sale,  extinguishes  the  lien  ;  and  the  fact  that 
he  takes  a  transfer  of  the  certificate  and  the  sheriff's 
deed,  instead  of  a  certificate  of  redemption,  cannot 
divest  the  lien  of  a  subsequent  judgment.  (McCarty 
V.  Christie,  13  Cal.  79.) 

The  purchaser  at  an  execution  sale,  before  convey- 
ance to  him,  has  a  right  to  redeem  the  property  sold 
on  the  enforcement  of  a  prior  lien  ;  after  conveyance 
to  him,  he  has  the  same  right  as  successor  in  interest 
to  the  debtor  or  mortgagor.  (McMillan  v.  Richards, 
9  Cal.  413.) 

§  272.  When  Judgment  Debtor  or  Redemp- 
tioner  may  Redeem. — §  703,  C.  C.  P.  provides  that 
"If  property  be  so  redeemed  by  a  redemptioner,  an- 
other redemptioner  may,  within  sixty  days  after  the 
last  redemption,  again  redeem  it  from  the  last  re- 
demptioner, on  paying  the  sum  paid  on  such  last  re- 
demption, with  four  per  cent,  thereon  in  addition, 
and  the  amount  of  any  assessment  or  taxes  which  the 
last  redemptioner  may  have  paid  thereon  after  the  re- 
demption by  him,  wath  interest  on  such  amount,  and 
in  addition  the  amount  of  any  liens  held  by  said  last 
redemptioner  prior  to  his  own,  with  interest ;  but  the 
judgment  under  which  the  property  was  sold  need 
not  be  so  paid  as  a  lien.  The  property  may  be  again, 
and  as  often  as  a  redemptioner  is  so  disposed,  re- 
deemed from  any  previous  redemptioner,  within  sixty 
days  after  the  last  redemption,  on  paying  the  sum 
paid  on  the  last  previous  redemption,  with  four  per 
cent,  thereon  in  addition,  and  the  amount  of  any  as- 
sessments or  taxes  which  the  last  previous  redemp- 


§   272  REDEMPTION.  3OO 

tioncr  paid  after  the  redemption  by  him,  with   interest 
thereon,  and  the  amount  of  any  hens,  other  than  the 
judgment  under  which  the  property  was  sold,  held  by 
the  last   redempdoner  previous   to  his  own,  with  in- 
terest.    Written  nodce  of  redemption  must  be  given 
to  the  sheriff,  and  a  duplicate  filed  with  the  recorder 
of  the  county  ;   and  if  any  taxes   or   assessments   are 
paid  by   the  redempdoner,   or  if  he  has  or  acquires 
any  lien  other  than  that  upon  which   the   redemption 
was    made,    nodce    thereof   must    in    like  manner  be 
given  to  the  sheriff,  and  filed  with  the  recorder;  and 
if  such   notice   be   not  filed,  the  property  may  be  re- 
deemed without  paying  such  tax,  assessment,  or  lien. 
If  no  redempdon  be  made  within  six  months  after  the 
sale,  the  purchaser,  or  his  assignee,   is   endded  to  a 
conveyance;  or,  if  so  redeemed,  whenever  sixty  days 
have  elapsed,  and  no  other  redempdon  has  been  made, 
and  notice  thereof  given,  and  the  time  for  redemption 
has  expired,  the- last  redemptioner,  or  his  assignee,  is 
endded  to  a  sheriff's  deed;  but  in  all  cases  the  judg- 
ment debtor  shall  have  the  endre  period  of  six  months 
from  the  date  of  the  sale  to  redeem  the  property.     If 
the  judgment  debtor  redeem,  he  must  make  the  same 
payments  as  are  required  to  effect  a  redempdon  by  a 
redemptioner.     If  the  debtor  redeem,  the  effect  of  the 
sale  is  terminated,   and   he   is  restored  to  his  estate. 
Upon  a  redempdon  by  a  debtor,  the  person  to  whom 
the  payment  is  made  must  execute  and  deliver  to  him 
a  certificate  of  redempdon,  acknowledged,  or  proved 
before  an  officer  authorized  to  take  acknowledgments 
of  conveyances    of  real    property.      Such    certificate 
must   be  filed  and  recorded  in  the  office  of  the   re- 
corder of  the   county  in   which  the  property  is   situ- 
ated, and  the  recorder  must  note  the  record  thereof 


\Ol  REDEMPTION. 


27. 


in  the  margin  of  the  record  of  the  certificate  of  sale. 

A  creditor  of  the  mortgagor  obtaining  a  judgment 
after  sale  under  the  decree  of  foreclosure,  but  before 
the  execution  of  the  conveyance  thereunder,  acquires 
a  lien  on  the  estate  entitling  him  to  redeem.  (McMil- 
lan V.  Richards,  9  Cal.  365.) 

A  redemptioner  may  exercise  his  right  to  redeem 
land  sold  on  execution,  if  no  redemption  has  been 
made  by  the  judgment  debtor,  at  any  time  during  the 
six  months  after  the  sale  ;  and  if  in  sixty  days  there- 
after there  is  no  redemption  from  him,  the  rio-ht  to 
redeem  from  him  is  gone,  even  as  to  the  judo-ment 
debtor,  and  he  is  entitled  to  a  sheriff's  deed.  (Boyle 
V.  Dalton,  44  Cal.  332.) 

§  273.  How  Redemptioner  may  Redeem. — 
A  redemptioner  must  produce  to  the  officer  or 
person  from  whom  he  seeks  to  redeem,  and  serve 
with  his  notice  to  the  sheriff: 

1.  A  copy  of  the  docket  of  the  judgment  under 
which  he  claims  the  right  to  redeem,  certified  by  the 
clerk  of  the  court,  or  of  the  county  where  the  judgment 
is  docketed,  or  if  he  redeem  on  a  mortgage  or  other 
lien,  a  note  of  the  record  thereof,  certified  by  the 
recorder ; 

2.  A  copy  of  any  assignment  necessary  to  establish 
his  claim,  verified  by  the  affidavit  of  himself,  or  of  a 
subscribinor  witness  thereto  ; 

3.  An  affidavit  by  himself  or  his  agent,  showing  the 
amount  then  actually  due  on  the  lien.     (§  705,  C.  C.  P.) 

When  the  redemption  is  attempted  to  be  effected 
through  the  sheriff,  he  has  no  authority,  either  to 
receive  the  redemption  money  from  one  claiming  the 
right  to  redeem   under  a  judgment,  or  to  execute  a 


§  2  74  REDEMPTION.  3O2 

deed  to  him,  unless  the  redemptioner  produces  a  copy 
of  the  docket  of  the  judgment  under  which  he  claims 
the  right  to  redeem,  certified  by  the  clerk  of  the  court 
or  of  the  county  where  the  judgment  is  docketed  ;  or, 
if  he  redeem  upon  a  mortgage  or  other  lien,  a  note  of 
the  record  thereof,  certified  by  the  recorder — a  copy 
of  any  assignment  necessary  to  establish  his  claim, 
verified  by  the  affidavit  of  himself,  or  of  a  subscribing 
witness  thereto  ;  an  affidavit  of  himself  or  his  agent, 
showing  the  amount  then  actually  due  upon  the  lien. 
(§  705'  ^-  C-  P')  ^^  should  bear  in  mind  that  a 
transcript  of  a  judgment  is  not  equivalent  to  a  copy  of 
the  docket  of  the  judgment. 

The  equitable  right  to  redeem  property  sold  under 
a  decree  of  foreclosure  held  by  subsequent  incum- 
brancers is  merged  into  a  statutory  right,  not  by  any 
force  given  to  the  language  of  the  decree,  but  by  the 
fact  that  they  have  had  their  day  in  court,  ^nd  an 
opportunity  of  setting  up  any  equities  they  possessed. 

After  the  decree,  they  stand,  as  to  their  right  of 
redemption,  in  the  same  position  as  ordinary  judgment 
debtors.     (Montgomery  e^.  Tutt,  ii  Cal.  317.) 

§274.  Other  Redemptioners.  —  A  subsequent 
judgment  creditor,  having  a  lien,  has  a  right  to  redeem 
real  estate  sold  by  foreclosure  of  a  previous  mortgage 
in  the  hands  of  the  purchaser.  (Kent  v.  Cahoon,  2 
Cal.  595.) 

A  creditor  of  the  mortgagor  obtaining  a  judgment 
after  sale  under  the  decree  of  foreclosure,  but  before 
the  execution  of  the  conveyance  thereunder,  acquires 
a  lien  on  the  estate  entitling  him  to  redeem.  (Mc- 
Millan V.  Richards,  9  Cal.  365.) 

A  subsequent  mortgagee  would   have   a   right   to 


303  REDEMPTION.  §   274 

redeem  premises  from  a  sale  under  a  judgment  upon 
mechanics'  lien  by  paying  the  money  justly  due,  inter- 
est, costs,  etc.,  he  not  having  been  a  party  to  the  suit 
by  the  lien  holder.      (Gamble  v.  Woll,  15  Cal.  510.) 

A  mortgagee  of  the  defendant  in  execution,  who  has 
failed  to  record  his  mortgage  until  after  the  sale,  has 
no  lien  or  intervening  rights  as  against  the  purchaser  : 
he  can  redeem  under  the  statute  :  if  he  fails  to  do  so, 
a  court  of  equity  will  not  interpose.  (Smith  v.  Randall, 
6  Cal.  53.) 

The  right  of  the  mortgagor  to  redeem  is  not  affected 
by  the  fact  that  he  may  have  had  no  title  to  the  mort- 
gage property,  nor  can  the  mortgagee  refuse  the  re- 
demption money,  if  tendered,  because  the  mortgagor 
had  no  title  to  mortgage.  (Lorenzana  v.  Camarillo,  45 
Cal.  125.) 

A  deed  conveying  land,  and  in  express  terms  reserv- 
ing to  the  grantor  a  lien  to  secure  the  payment  of  two 
promissory  notes  for  a  part  of  the  price,  creates  an 
equitable  mortgage  upon  the  land.  Such  lien  is  more 
than  a  vendor's  lien,  and  is  not  lost  by  the  assignment 
of  the  promissory  notes.  (Dingly  v.  Bank  of  Ventura, 
57  Cal.  467.)  Such  a  lien  may  be  foreclosed  as  a 
mortgage,  and  there  is  the  same  right  of  redemption 
for  a  limited  period  after  a  foreclosure  sale. 

Possibly  a  court  of  equity  would,  under  some  circum- 
stances, allow  a  tenant  for  years  to  redeem  the  prem- 
ises sold  in  foreclosure,  if  he  applied  within  a  reason- 
able period  after  becoming  acquainted  with  the  pro- 
ceedings.     (McDermott  v.  Burke,  16  Cal.  590.) 

Leonis,  a  prior  mortgagee,  brought  suit  for  fore- 
closure, obtained  the  usual  decree,  and  the  writ  was 
placed  in  the  sheriff's  hands  for  execution.  The 
mortgagees  then  executed  a  conveyance  of  the  prem- 


§§   2  75'   -7^  REDEMPTION.  3O4 

ises  to  Leonis,  it  not  bein^^r  intended  by  the  latter  that 
his  security  should  merge  in  the  conveyance  or  that 
his  lien  should  be  extinguished.  Following,  Leonis 
purchased  the  premises  at  the  sheriff's  sale.  Plaintiff 
claiming  under  a  junior  mortgage,  not  affected  by  the 
prior  suit,  joined  Leonis  as  defendant  in  an  action  of 
foreclosure,  claiming  the  conveyance  to  Leonis  oper- 
ated a  merger  of  his  mortgage  lien  upon  the  prem- 
ises. The  court  adjudged  that  the  lien  of  Leonis  was 
not  merged;  that  plaintiff  should  redeem  the  prop- 
erty from  Leonis  by  paying  the  latter  the  amount  bid 
at  the  sheriff's  sale.  (Rumpp  z'.  Gerkins,  filed  January 
nth.  1882.) 

§  275.  Who  cannot  Redeem. — Where  a  mort- 
gagor filed  a  homestead  subsequent  to  a  second  mort- 
gage, and  both  mortgages  were  foreclosed,  the  first 
mortgage  and  part  of  the  second  being  paid,  and 
judgment  for  the  deficiency  due  the  second  mortgagee 
being  docketed ;  it  was  held,  in  Hershey  v.  Dennis, 
53  Cal.  ']'],  that  the  lien  of  the  docketed  deficiency 
was  superseded  by  the  homestead,  and  that  the  sec- 
ond mortgagee  could  not  redeem  from  the  purchaser 
at  the  mortgage  sale. 

§  276.  Redemption  where  Tenants  in  Com- 
mon.— Where  land  sold  under  judgment  is  embraced 
in  one  sale,  a  redemptioner  having  a  lien  upon  a  share 
or  part  of  the  land  sold  can  only  redeem  by  paying 
the  whole  of  the  purchase-money  and  redeeming  the 
whole  of  the  land ;  and,  in  such  case,  he  succeeds  to 
the  whole  interest  of  the  purchaser.  Accordingly, 
where  land  was  sold  under  a  judgment  of  foreclosure 
against  tenants  in  common,  and  redeemed  by  a  judg- 


305  REDEMPTION.  §   277 

ment  creditor  of  one  of  the  tenants,  who  in  due 
course  received  his  deed  (as  in  the  case  Eldridge  v. 
Wright,  55  Cal.  531 ),  it  was  held  that  the  redemptioner 
took  the  interests  of  both  tenants.  Mr.  Justice  Thorn- 
ton deHvered  the  opinion  of  the  court  in  this  case. 
Mr.  Justice  Sharpstein,  concurring  in  the  judgment, 
doubted  whether  the  redemptioner  had  a  right  to  re- 
deem a  greater  interest  in  the  property  sold  than  that 
of  his  judgment  debtor;  but  was  of  the  opinion,  as 
the  purchaser  did  not  object  to  his  redeeming  the 
whole  property,  that  the  effect  of  the  transaction  was 
to  vest  in  him  the  whole  interest  of  the  purchaser. 
Mr.  Justice  Myrick,  dissenting,  was  of  opinion  that 
the  redemptioner  was  subrogated  to  the  rights  of  his 
judgment  debtor,  and  thus  became  the  owner  of  the 
legal  title  formerly  held  by  him ;  and,  as  to  the  other 
tenant,  that  he  acquired  an  equitable  lien  upon  his 
interest  as  security  for  one-half  of  the  redemption 
money. 

A.  owes  B.  a  debt ;  to  secure  it,  A.  and  C.  jointly 
mortgage  to  B.  a  piece  of  land  owned  by  them  in 
common.  Subsequently,  A.  mortgages  his  undivided 
interest  in  the  land  to  secure  a  debt  to  D.  B.  fore- 
closes against  A.  and  C,  and  buys  in  the  whole  land, 
not  making  D.  a  party.  The  time  of  statutory  redemp- 
tion having  expired,  B.  gets  a  sheriff's  deed  :  Held, 
that  D.,  as  subsequent  mortgagee,  may  redeem  A.'s 
but  not  C.'s  interest  in  the  land,  and  that  the  sale  is 
final  as  to  C.'s  interest,  D.  not  being  a  necessary  party 
to  the  foreclosure.      (Kirkhamz^.  Dupont,  14  Cal.  563.) 

§  277.     Rights  of  Creditors. — After  the  execution 
of  a  mortgage  upon  real   estate,  a  judgment  was  ren- 
dered against   the  mortgagor,  which  became    a   lien 
20 


§278  REDEiMl'TION.  306 

Upon  the  mortgaged  property  ;  the  mortgagee  then 
foreclosed  the  mortgage,  making  the  mortgagor  alone 
a  party  defendant,  had  the  property  sold  under  the 
decree,  became  the  purchaser,  and  obtained  a  sheriff's 
deed  ;  afterwards,  the  judgment  creditor  procured  an 
execution  upon  his  judgment,  and  had  the  property 
advertised  for  sale  ;  the  holder  of  the  title  under  the 
sheriff's  deed  filed  a  bill  in  equity  to  enjoin  the  sale  : 
Held,  that  he  was  not  entitled  to  an  injunction,  and 
that  the  judgment  creditor  had  a  right  to  sell  any 
interest  in  the  land  held  by  the  judgment  debtor  at  the 
rendition  of  the  judgment  or  levy  of  the  execution. 
Held,  further,  that  the  judgment  creditor's  equitable 
right  of  redemption  not  having  been  cut  off  by  the 
foreclosure,  he  might,  during  the  two  years  that  his 
judgment  was  a  lien  upon  the  premises,  sell  under  an 
execution,  and  purchase  the  legal  title  of  the  mortgagor, 
not  only  that  he  might  assert  his  right  of  redemption 
at  any  time  within  the  period  allowed  by  the  Statute  of 
Limitations,  but,  also,  that  he  might  realize  any  other 
benefit  or  advantaije  that  miirht  accrue  to  him  from  the 
sale.      (Alexander  v.  Greenwood,  23  Cal.  506.) 

§  278.  Rents  and  Profits  in  Redemption. — 
The  purchaser,  from  the  time  of  the  sale  until  a  redemp- 
tion, and  a  redemptioner,  from  the  time  of  his  redemp- 
tion until  another  redemption,  is  entitled  to  receive, 
from  the  tenant  in  possession,  the  rents  of  the  prop- 
erty sold,  or  the  value  of  the  use  and  occupation 
thereof.  But  when  any  rents  or  profits  have  been 
received  by  the  judgment  creditor  or  purchaser,  or  his 
or  their  assigns,  from  the  property  thus  sold  preceding 
such  redemption,  the  amounts  of  such  rents  and  profits 
shall  be  a  credit  upon  the  redemption  money  to  be 


307  REDEMPTION.  §   279 

paid  ;  and  if  the  redemptioner  or  judgment  debtor, 
before  the  expiration  of  the  time  allowed  for  such 
redemption,  demands  in  writing  of  such  purchaser  or 
creditor,  or  his  assigns,  a  written  and  verified  state- 
ment of  the  amount  of  such  rents  and  profits  thus  re- 
ceived, the  period  for  redemption  is  extended  five  days 
after  such  sworn  statement  is  given  by  such  purchaser 
or  his  assigns  to  such  redemptioner  or  debtor.  If  such 
purchaser  or  his  assigns  shall,  for  a  period  of  one 
month  from  and  after  such  demand,  fail  or  refuse  to 
give  such  statement,  such  redemptioner  or  debtor  may 
bring  an  action  in  any  court  of  competent  jurisdiction, 
to  compel  an  accounting  and  disclosure  of  such  rents 
and  profits,  and  undl  fifteen  days  from  and  after  the 
final  determination  of  such  action,  the  right  of  redemp- 
tion is  extended  to  such  redemptioner  or  debtor.  (§ 
707,  C.  C.  P.) 

§  279.  Rights  of  Purchasers. — Where  the  owner 
of  mortgaged  premises  leases  the  same  for  a  term  of 
years,  and  the  rent  is  paid  in  advance  by  the  tenant : 
Held,  that  the  purchaser  under  the  mortgage  sale  can 
require  the  tenant  to  pay  the  rent  over  again  to  him. 
After  sale,  and  before  the  term  of  redemption  has  ex- 
pired, the  purchaser  is  entitled  to  collect  the  rents. 
(McDevitt  V.  Sullivan,  8  Cal.  593.) 

A  purchaser  of  land  at  sheriff's  sale  can  maintain 
an  action  for  rent  against  the  tenant-in-possession  un- 
der the  judgment  debtor,  before  the  expiration  of  the  six 
months  allowed  for  redemption,  and  as  often  as  the  rent 
becomes  due  under  the  terms  of  the  lease  when  he 
purchased.  (Reynolds  v.  Lathrop,  7  Cal.  43.)  The 
sale  operates  as  an  assignment  of  the  lease  for  the 
time. 


^2  79  REDEMPTION.  ^oS 

The  purchaser  at  sheriff's  sale  of  a  "water-ditch," 
is  entitled  to  the  rents  and  profits  thereof  from  the 
date  of  the  sale  till  the  expiration  of  the  time  for  re- 
demption, as  well  from  the  judgment  debtor  in  pos- 
session as  from  his  tenant,  and  where  a  judgment 
debtor  remains  in  possession  of  a  "water-ditch"  after 
sheriff's  sale,  and  collects  the  rents  and  profits  during 
the  six  months  following,  he  is  a  trustee  of  the  fund 
for  the  purchaser  at  the  sale,  and,  if  the  fund  be  in 
danger  of  loss,  a  bill  in  equity  to  account,  will  lie. 
(Harris  v.  Reynolds,  13  Cal.  515.) 

A  judgment  debtor  who  redeemed  his  property 
within  twenty-one  days  after  the  sheriff's  sale,  but 
who  had  received  from  his  tenants  in  possession 
$445,  rent  between  the  day  of  sale  and  the  redemp- 
tion, held  liable  to  the  purchaser  at  the  sale  for  the 
amount  so  received.  (17  Cal.  596.  Also,  cited  as 
authority  in  Walls  v.  Walker,  :^'j  Cal.  432  ;  and  see 
Knight  z'.  Truett,  18  Cal.  113;  Raun  v.  Reynolds,  /d. 
289;  Hill  z'.  Taylor,  22  Cal.  191  ;  Henry  zk  Evarts,  30 
Cal.  425;  Webster  v.  Cook,  38  Cal.  425;  Page  v. 
Rogers,  31  Cal.  294.) 

While  the  statute  gives  to  the  purchaser  the  right 
to  receive  the  rents  of  the  property  sold,  pending  the 
time  for  redempdon,  he  cannot  enforce  such  right  by 
writ  of  attachment  against  the  tenant's  property.  In 
the  case  of  Walker  z'.  McCusker,  opinion  filed  in  de- 
partment two  of  the  Supreme  Court,  June  28th,  1884, 
the  court  say: 

"This  action  was  brought  to  recover  of  the  defend- 
ant, as  tenant  in  possession  of  real  estate  purchased 
by  plaintiff  on  decree  of  foreclosure  and  sale,  the  sum 
of  $1200,  value  of  the  use  and  occupation  from  the 
day  of  sale  to  the  making  of  the   deed.     The  plaintiff 


309  REDEMPTION.  §§  280,  28 1 

sued  out  a  writ  of  attachment  by  which  property  was 
attached;  the  defendant  moved  that  the  attachment 
be  dissolved ;  the  court  below  denied  the  motion,  and 
the  appeal  from  the  order  of  denial  is  before  us. 

"§  707,  C.  C.  P.,  declares  that  the  purchaser,  from 
the  time  of  sale,  is  entitled  to  receive  from  the  tenant 
in  possession  the  rents  of  the  property  sold  or  the 
value  of  the  use  and  occupation. 

"The  liability  of  the  tenant  in  possession  to  the 
purchaser,  for  rents  or  use  and  occupation  from  the 
day  of  sale  to  the  expiration  of  the  time  for  redemp- 
tion is  a  statutory  liability  merely,  and  exists  without 
the  assent  of  the  person  in  possession.  It  is  not  a 
liability  founded  on  a  contract  expressed  or  implied 
within  the  meaning  of  §  537,  C.  C.  P.,  authorizing  the 
issuance  of  an  attachment. 

"The  order  is  reversed  and  the  cause  is  remanded, 
with  instructions  to  dissolve  the  attachment." 

§280.  Rights  of  Mortgagor.  —  A  mortgagor, 
after  a  sale  of  the  mortgaged  premises  under  a  decree 
in  a  suit  to  foreclose  the  mortgfagre,  has  the  rig-ht  to 
the  use  and  possession  of  the  mortgaged  premises 
until  the  execution  of  the  sheriff's  deed,  but  he  pos- 
sesses no  right  to  despoil  the  property  of  its  fixtures. 
The  deed  of  the  sheriff  takes  effect  by  relation  at  the 
date  of  the  mortgage,  and  passes  fixtures  subsequently 
annexed  by  the  mortgagor.  (Sands  v.  Pfeiffer,  10 
Cal.  259.) 

§  281.  Redemption  of  Real  Estate  of  a  De- 
cedent.— §  1505,  C.  C.  P.,  provides  that  "when  any 
judgment  has  been  rendered  for  or  against  the  testator, 
intestate  in  his  lifetime,  no  execution  shall  issue  thereon 


§282  REDEMPTION.  3IO 

after  his  death,  except  as  provided  in  §  686.  A  judg-- 
ment  against  the  decedent  for  the  recovery  of  money 
must  be  presented  to  the  executor  or  adniinistrator  hke 
any  other  claim.  If  execution  is  actually  levied  upon 
any  property  of  the  decedent  before  his  death,  the 
same  may  be  sold  for  the  satisfaction  thereof;  and  the 
officer  making  the  sale  must  account  to  the  executor 
or  administrator  for  any  surplus  in  his  hands.  A 
judgment  creditor  having  a  judgment  which  was  ren- 
dered against  the  testator  or  intestate  in  his  lifedme, 
may  redeem  any  real  estate  of  the  decedent  from  any 
sale  under  foreclosure  or  execution,  in  like  manner 
and  with  like  effect  as  if  the  judgment  debtor  were 
still  living." 

A  judgment  creditor  having  a  judgment  which  was 
rendered  aeainst  the  testator  or  intestate  in  his  life- 
time,  may  redeem  any  real  estate  of  the  decedent  from 
any  sale  under  foreclosure  or  execution,  In  like  man- 
ner and  with  like  effect  as  if  the  judgment  debtor 
were  still  living.      (§  1505,  C.  C.  P.) 

§  282.  Change  from  Real  to  Personal  Pro- 
perty.— The  severance  and  removal  of  a  house  from 
the  freehold  changes  the  character  of  the  house  from 
real  to  personal  property,  whether  the  severance  is  by 
the  act  of  God  or  of  man.  A  house  on  a  mortgaged 
lot  in  Sacramento  was  carried  by  the  flood  in  1862 
into  the  street,  a  short  distance  from  the  lot.  The 
owner  made  a  contract  with  one  Lowell  to  sell  him  the 
house,  and  Lowell  was  about  to  remove  it  when  the 
mortgagee  brought  an  action  to  foreclose  the  mortgage 
and  to  restrain  the  removal.  At  the  trial,  the  court 
rendered  a  judgment  against  the  owner  of  the  lot  for 
the  amount  due  on  the  note  ;    and  a  decree  for  the 


311  REDEMPTION.  §§283-285 

foreclosure  of  the  mortsfaore  and  for  the  sale  of  the 
mortgaged  property,  excepting  the  house,  and  as  to 
that,  It  was  ordered  that  the  decree  should  not  affect 
nor  authorize  its  sale.  The  judgment  was  affirmed. 
(Buckout  V.  Swift,  27  Cal.  434.)  It  was  held  that  the 
severance  and  removal  of  the  house  withdrew  the 
house  from  the  operation  of  the  mortgage  Hen,  and 
that  after  the  removal  the  morto^aoor  or  his  assig-nee 
had  a  right  to  sell  the  house,  and  the  purchaser  to 
convert  it  to  his  own  use. 

§  283.  Costs  of  Appeal  in  Redemption. — Where 
a  judgment  is  against  two,  one  only  of  whom  appeals, 
and  the  appeal  Is  dismissed  with  twenty  per  cent, 
damag^es,  the  damao-es,  with  the  costs,  do  not  become 
part  of  the  original  judgment,  and  the  redemptloner  is 
not  bound  to  pay  them  when  he  redeems  from  a  sale 
under  the  judgment.  (McMillan  v.  Vischer,  14  Cal. 
232.) 

§  284.  Payments  in  Redemption. — The  pay- 
ments mentioned  In  §§  702  and  703  of  the  Code  of 
Civil  Procedure,  may  be  made  to  the  purchaser  or 
redemptloner,  or  for  him,  to  the  officer  who  made  the 
sale.  When  the  judgment  under  which  the  sale  has 
been  made  Is  payable  In  a  specified  kind  of  money  or 
currency,  payments  must  be  made  in  the  same  kind  of 
money  or  currency,  and  a  tender  of  the  money  is 
equivalent  to  payment. 

The  tender  of  the  redemption  money  extinguishes 
the  purchaser's  lien,  and  is  equivalent  to  payment. 
(Hershey  v.  Dennis,  53  Cal.  yj.) 

§  285.     Redemption  in  Treasury  Notes. — It  is 


§§  286,  28;^  Ki-.Di'.Mi'Tiox,  312 

heKl,  in  the  case  of  The  People  ex  re/.  Mulford  v.  May- 
hew,  sheriff,  26  Cal.  656,  lliat  the  obHgation  of  a  judg- 
ment creditor  or  redemptioner  to  pay  a  certain  amount 
of  money  in  order  to  exercise  the  statutory  right  of 
redemption  from  a  sale  of  land  made  by  a  sheriff,  is  a 
debt  within  the  meaning  of  the  Act  of  Congress,  mak- 
ing treasury  notes  lawful  money  and  a  legal  tender  in 
payment  of  debts.  Land  sold  at  sheriff's  sale  under  a 
judgment  payable  generally  in  money,  without  specify- 
ing a  particular  kind  of  money,  may  be  redeemed  with 
treasury  notes, 

§  286.     W^hat    Money    Sheriff    may    Receive 

in  Redemption. — The  sheriff  is  the  special  agent  of 
the  purchaser  of  land,  authorized  to  receive  the  redemp- 
tion money  for  him,  and,  as  such,  may  receive  in 
redemption  any  lawful  money,  unless  the  judgment 
under  which  the  sale  was  made  was  rendered  payable 
in  a  particular  kind  of  money.  A  payment  to  the 
sheriff  for  the  redemption  of  land  sold  under  execution 
cannot  be  made  in  certified  checks.  (People  v.  Mayhew, 
26  Cal.  655.) 

§  287.  Withdrawing  Redemption  Money  De- 
feats Redemption. — If  the  judgment  debtor,  whose 
land  has  been  sold  on  the  judgment,  deposits  with  the 
sheriff,  before  the  time  for  redemption  expires,  money 
sufficient  to  redeem  it  from  the  sale,  and  the  sheriff, 
after  the  time  for  redemption  expires,  executes  and 
delivers  to  the  purchaser  a  deed,  the  judgment  debtor, 
if  he  would  claim  the  benefit  of  the  redemption,  must 
not  withdraw  the  money  from  the  sheriff,  for  by  with- 
drawing the  money  he  ratifies  the  act  of  the  sheriff  in 
delivering  the  deed.     (Wilkins  v.  Wilson,  51  Cal.  212.) 


313  REDEMPTION.  §§   288,  289 

§  288.  Payment  under  Protest. — When  a  re- 
demptioner,  under  die  statute,  pays  to  the  sheriff  an 
excess  of  money,  under  protest  as  to  the  excess,  the 
payment  is  not  compulsory.  (McMillan  v.  Vischer, 
14  Cal.  232.) 

§  289.  The  Sheriff's  Deed. — Formerly,  when  a 
sheriff  sold  land  under  execution,  and  gave  a  certificate 
of  sale  to  the  purchaser,  and  subsequently  his  term  of 
office  expired,  he  was  the  proper  person  to  make  the 
deed.  But  under  the  Act  to  Establish  a  Uniform 
System  of  County  and  Township  Governments,  ap- 
proved March  14,  1883,  it  is  provided  that  "when  any 
process  remains  with  the  sheriff  unexecuted,  in  whole 
or  in  part,  at  the  time  of  his  death,  resignation  of 
office,  or  at  the  expiration  of  his  term  of  office,  said 
process  shall  be  executed  by  his  successor  or  succes- 
sors in  office  ;  and  when  the  sheriff  sells  real  estate 
under  and  by  virtue  of  an  execudon  or  order  of  court, 
he,  or  his  successors  in  office,  shall  execute  and  deliver 
to  the  purchaser,  or  purchasers,  all  such  deeds  and 
conveyances  as  are  required  by  law  and  necessary  for 
the  purpose,  and  such  deeds  and  conveyances  shall  be 
as  valid  in  law  as  if  they  had  been  executed  by  the 
sheriff  who  made  the  sale." 


CHAPTER  XII. 


SHERIFFS        DEEDS, 


§  2go.  When  Deed  is  Due. 

§  291.  When  Deed  Takes  Effect. 

§  292.  What  Sheriff's  Deed  Conveys. 

§  293.  Recitals  in  Sheriff's  Deed. 

§  294.  Parol  Evidence  not  Admissible. 

§  295.  Who  Estopped  by  Recitals  in  Sheriff's  Deed. 

§  296.  Against  Whom  Officer's  Deed  is  Evidence. 

§  297.  How  Meaning  of  Deed  Ascertained. 

§  298.  Against  Whom  Officer's  Deed  not  Evidence. 

§  299.  Sheriff's  Deed  Void. 

§  300.  When  Mandamus  to  Sheriff  will  not  Lie. 

§  301.  Deed  by  Deputy  Sheriff. 

§  290.  When  Deed  is  Due. — The  purchaser,  or 
his  assienee,  is  entitled  to  a  sheriff's  deed  after  the 
expiration  of  six  months  from  the  day  of  sale,  if  no 
redemption  has  been  made. 

The  term  "months"  used  in  the  statute,  fixing  the 
period  of  redemption  from  judicial  sales,  means  calen- 
dar, and  not  lunar,  months ;  and  a  sheriff's  deed 
executed  before  the  expiration  of  the  statutory  period 
of  redemption,  is  absolutely  void,  and  not  merely  void- 
able.    (Gross  V.  Fowler,  21  Cal.  393.) 

§  291.  When  Deed  Takes  Effect.— When  a 
judgment  is  rendered  in  an  attachment  suit,  and  be- 


315  sheriffs'  deeds.  §  291 

comes  a  lien  on  real  property,  the  lien  of  the  attach- 
ment is  merged  in  the  judgment,  and  the  deed 
which  follows  takes  effect  from  the  date  of  the  attach- 
ment. The  judgment  does  not  operate  so  as  to 
release  or  obliterate  the  attachment  lien.  The  property 
attached  is  still  in  contemplation  of  law  in  the  hands  of 
the  officer,  subject  to  the  judgment.  The  property  is 
sold  under  final  process  issued  on  the  judgment,  but 
the  deed  made  to  the  purchaser  at  the  sale,  as  the  last 
of  the  series  of  acts,  takes  effect  from  the  date 
of  the  levy  of  the  attachment,  as  the  first  of  the  series 
of  acts,  and  perfects  the  title  of  the  property  from  the 
day  when  it  was  taken  by  the  officer  for  the  satisfaction 
of  the  judgment.  In  the  case  of  Porter  v.  Pico,  55  Cal. 
174,  Mr.  Justice  McKee,  who  delivered  the  opinion  of 
the  court,  said  :  "  Perhaps  it  would  be  more  in  accord- 
ance with  the  fitness  of  thinos  to  deal  with  the  fact  of 
the  levy  of  the  attachment  as  of  an  incipient  execution, 
by  which  the  officer  has  taken  into  his  possession  the 
subject  of  the  levy  for  the  satisfaction  of  any  judgment 
which  might  be  recovered,  and  to  order  him,  after 
judgment,  to  sell  the  specific  property  for  that  purpose. 
Under  the  other  practice,  the  levy  of  the  attachment, 
upon  the  principle  transit  in  7^ein  judicatain,  becomes 
merged  in  the  judgment,  and  the  judgment  perpetu- 
ates the  lien  of  the  levy,  and  the  sheriff's  deed  perfects 
the  title  which  passes  by  the  sale  under  the  judgment 
and  relates  to  the  date  of  the  levy.  Upon  these  prin- 
ciples, it  is  not  necessary  for  the  court,  in  order  to 
enforce  priority  of  lien,  to  make  an  order  for  the  sale 
of  the  property  attached,  or  to  issue  a  venditioni  expo- 
nas. The  execution  upon  the  judgment  is  a  sufficient 
authority  to  the  sheriff  to  sell  the  real  property  which 
he  has  in  his  possession,  and  the  deed  which  he  makes 


§§   292.    293  SHERIFI-'S'    DEEDS.  316 

relates  back  to  the  date  of  the  Hen  perpetuated  by  the 
judgment." 

A  sheriff's  deed  takes  effect  from  the  time  of  its  actual 

0 

delivery,  and  the  execution  of  the  deed  by  the  sheriff, 
and  information  given  by  him  to  the  grantee  that  the 
deed  is  ready  for  him,  do  not  amount  to  a  delivery. 
(Jefferson  v.  Wendt,  51  Cal.  573.)  The  Statute  of 
Limitations  does  not  commence  runnino-  ao^ainst  a 
purchaser  of  land  at  a  sheriff's  sale  until  the  sheriff's 
deed  has  been  delivered  to  the  purchaser,  or  some 
one  for  him,  in  such  a  way  as  to  be  beyond  the  legal 
control  of  the  g-rantor. 

§  292.  What  Sheriff's  Deed  Conveys. — A  de- 
cree foreclosing  a  mortgage,  and  directing  the  sale  of 
the  mortgaged  premises,  and  the  execution  of  a  sheriff's 
deed  under  the  decree,  transfer  to  the  purchaser  what- 
ever interest  the  mortoa^re  created  and  vested  in  the 
mortgagee,  and  nothing  more.  (Branham  v.  San  Jose, 
24  Cal.  585.) 

§  293.  Recitals  in  Sheriff's  Deed. — The  officer 
who  makes  a  sale  of  land  by  virtue  of  an  execution, 
and  executes  to  the  purchaser  a  deed  therefor,  must, 
in  liis  deed,  make  recitals  of  the  recovery  of  the 
judgment,  the  names  of  the  judgment  creditor  or 
creditors,  and  of  the  judgment  debtor  or  debtors, 
and  of  the  issuing  of  an  execution  on  the  judgment, 
and  of  the  levy  and  sale  thereunder.  The  recital  of 
such  facts  are  essential  to  show  the  officer's  authority 
and  the  transmission  of  the  debtor's  title  in  the  prop- 
erty to  the  purchaser.  (Donahue  v.  IMcNulty,  24  Cal. 
411.) 

It  may  be  regarded  as  settled  in  this  State,  that  the 


317  sheriffs'  deeds.  §§  294-296 

mis-recital  of  the  execution  in  an  officer's  deed  will 
not  affect  the  validity  of  the  deed,  if  the  officer  had 
authority  to  sell. 

§  294.  Parol  Evidence  not  Admissible. — Parol 
testimony  of  the  officer  who  makes  a  sale  of  property 
under  an  execution,  and  executes  a  deed  to  the  pur- 
chaser therefor,  is  not  admissible  for  the  purpose  of 
adding  to,  contradicting,  or  altering  the  terms  of  the 
deed.      (Donahue  v.  McNulty,  24  Cal,  412.) 

Parol  evidence  is  inadmissible  to  show  that  a  con- 
stable's sale  was  made  by  virtue  of  any  other  judg- 
ment or  execution  than  that  recited  in  the  deed ;  and 
it  is  also  inadmissible  to  show  that  the  constable  sold 
the  interest  of  a  person  in  the  land  described  in  the 
deed,  whose  interest  the  deed  itself  does  not  recite 
upon  its  face  to  have  been  sold. 

§  295.  Who  Estopped  by  Recitals  in  Sheriff's 
Deed. — The  officer  executing  a  deed  for  property  sold 
under  execution,  and  those  who  claim  under  the  deed, 
are  estopped  from  denying  the  truth  of  the  matters 
recited  therein,  but  the  same  are  not  evidence  as 
against  strangers,  or  those  claiming  adversely  to  the 
deed.     (Donahue  v.  McNulty,  24  Cal.  411.) 

§  296.  Against  Whom  Officer 's  Deed  is  Evi- 
dence.— A  deed  of  a  constable,  made  of  land  sold 
under  execution,  is  not  evidence  of  the  purchaser's 
title  as  against  any  person  except  those  whom  the  deed 
shows  upon  its  face  to  have  been  judgment  debtors, 
and  named  as  such  in  the  execution  issued  on  the  judg- 
ment, and  whose  interest  in  the  property  was  sold  by 
the  officer. 


^^   297-301  SHKRIKKS'    DEEDS.  318 

§  297.  How  Meaning  of  Deed  Ascertained. — 
Where  the  language  of  a  deed  executed  by  an  officer 
for  property  sold  under  execution  is  plain  and  unambig- 
uous, the  court  should  Hmit  its  inquiry  to  what  the  words 
of  die  deed  express,  without  regard  to  any  intention 
independent  of  the  words.     Id. 

%  298.  Against  Whom  Officer's  Deed  not  Evi- 
dence.— Where  a  judgment  was  rendered  against 
several  persons,  and  the  execution  issued  upon  it 
ao-ainst  all  the  judgment  debtors,  and  the  constable 
levied  upon  and  sold  the  land  of  one  of  the  judgment 
debtors,  but,  in  making  a  deed  to  the  purchaser,  did 
not  insert  the  name  of  the  one  whose  land  had  been 
sold  as  a  judgment  debtor,  or  recite  that  his  land  had 
been  sold :  Held,  that  the  deed  was  not  evidence  of 
title  in  the  purchaser  as  against  the  owner  of  the  land.. 

§  299.  Sheriff's  Deed  Void. — If  a  sheriff's  deed 
be  given  before  the  time  for  redemption  has  expired, 
it  is  void. 

§  300.  When  Mandamus  to  Sheriff  will  not 
Lie. — A  mandamus  will  not  lie  to  compel  a  sheriff  to 
make  a  deed  of  land  to  a  purchaser  at  execution  sale, 
who  refuses  to  pay  the  purchase-money,  on  the  ground 
that  he  is  entitled  to  it  as  oldest  judgment  and  execu- 
tion creditor ;  especially  when  there  is  an  unsettled 
contest  as  to  the  priority  of  his  lien.  (Williams  v. 
Smith,  6  Cal.  98.) 

§  301.  Deed  by  Deputy. — A  sheriff's  deputy  may 
execute  a  deed  for  property  sold  under  execution,  but 
he  must  execute  it  in  the  name  of  the  sheriff  (Lewis 
V.  Thompson,  3  Cal.  267.) 


CHAPTER  XIII. 


WRIT    OF    ASSISTANCE. 


§  302.  Object  of  the  Writ. 

§  303.  Plaintiff  Entitled  to  Immediate  Service. 

§  304.  Against  Whom  Writ  will  Issue. 

§  305.  When  Writ  will  be  Refused. 

§  306.  When  Writ  may  Issue. 

§  307.  Where  Tenants  in  Common. 

§  308.  Who  not  to  be  Removed. 

§  309.  Alias  Writ. 

§  310.  False  Return. 

§  302.  Object  of  the  Writ. — A  writ  of  assistance 
is  the  appropriate  remedy  to  place  the  purchaser  of 
mortgaged  premises,  under  a  decree  of  foreclosure, 
in  possession,  after  he  has  obtained  the  sheriff's  deed. 

§  303.  Plaintiff  Entitled  to  Immediate  Ser- 
vice.— Under  the  writ  of  assistance,  the  party  for 
whose  benefit  it  is  issued  is  entitled  to  immediate  pos- 
session. The  writ  commands  the  sheriff  to  forth- 
with place  the  plaintiff  in  possession,  and  it  is  only 
by  his  consent  that  any  delay  in  its  service  can  be  per- 
mitted. 

In  the  case  of  Chapman  v.  Thornburg,  sheriff  of 
Yuba  county,  17  Cal.  87,  where  the  sheriff  received  a 
writ  of  assistance,  commandino-  him  forthwith  to  deliver 
possession  of  certain  real  estate  to  plaintiff;  and  went 


§  304  WRIT    OF    ASSISTANCE.  32O 

with  plaintiff  to  the  premises  for  the  purpose  of  putting- 
him  in  possession,  but  for  some  reason  not  stated — in 
opposition  to  plaintiff's  wishes  and  against  his  protesta- 
tions— he  declined  to  take  any  action  in  the  matter,  and 
then,  on  a  subsequent  day,  the  sheriff  proceeded  to 
execute  the  writ ;  but  the  parties  in  possession,  being 
the  parties  against  whom  the  writ  rim,  had,  in  the 
meantime,  destroyed  a  number  of  valuable  fixtures, 
and  by  their  willful  and  malicious  acts  had  injured  the 
premises  in  other  respects  :  Held,  that  the  sheriff  is 
liable  for  the  damage  thus  done  ;  that  he  is  presumed 
to  know  what  his  duty  was,  and  to  have  acted  in  willful 
violation  of  it ;  and  that,  as  his  duty  was  to  execute 
the  writ  at  the  earliest  practicable  moment,  and  he 
neglected  and  refused  so  to  do,  it  was  through  his  fault 
that  the  parties  in  possession  were  enabled  to  commit 
the  injury  ;  and  he  must  respond  in  damages,  however 
remote. 

§  304.  Against  Whom  will  Issue. — A  writ  of 
assistance  can  only  issue  against  the  defendants  in  the 
suit,  and  parties  holding  under  them  who  are  bound  by 
the  decree.  In  a  suit  for  foreclosure,  all  persons  inter- 
ested in  the  premises,  prior  to  the  suit,  whether  pur- 
chasers, heirs,  devisees,  remainder-men,  or  incum- 
brancers, must  be  made  parties  (Montgomery  v.  Tutt, 
1 1  Cal.  314);  otherwise  their  rights  will  not  be  affected. 
The  purchaser  under  a  decree  takes  a  title  only  as 
against  the  parties  to  the  suit.  All  the  authorities 
agree  that  parties  not  brought  into  a  suit  of  foreclosure 
preserve  certain  rights,  but  the  point  where  they  differ 
is,  as  to  what  those  rights  are. 

One  Lefevre,  a  married  man,  purchased  certain  real 
estate,  subject  to  a  mortgage  thereon,  which  had  been 


32  1  WRIT    OF    ASSISTANCE.  §   305 

previously  executed  by  his  grantor,  and  soon  afterwards 
died.  The  mortgagee  commenced  an  action  to  fore- 
close the  mortgage,  making  the  executors  of  Lefevre, 
but  not  the  widow,  a  party,  and  after  a  decree  of  fore- 
closure and  sale  and  expiration  of  the  time  of  redemp- 
tion, received  the  sheriff's  deed  (himself  being  the 
purchaser),  and  thereupon  applied  to  the  court  for  a 
writ  of  assistance  against  the  widow,  who  retained 
possession  of  a  portion  of  the  premises,  which,  on 
demand,  she  refused  to  surrender :  Held,  on  appeal 
from  an  order  denying  the  writ,  that  the  denial  was 
proper  ;  that  the  estate  conveyed  to  Lefevre  became 
thereby  the  common  property  of  himself  and  wife  ;  that 
upon  his  death,  the  title  to  one-half  of  this  property 
vested  in  her,  subject  only  to  the  mortgage  and  the  lien 
for  the  payment  of  debts  ;  that  this  title  was  not  affected 
by  the  proceedings  in  the  foreclosure  suit  to  which  she 
was  not  a  party  ;  and  that  not  being  bound  by  the 
decree,  a  writ  of  assistance  could  not  be  issued  against 
her.      (Burton  v.  Lies  et  al.,  21  Cal.  88.) 

A  person  who,  pending  an  action  for  the  foreclosure 
of  a  mortgage,  and  with  notice  of  its  pendency,  pur- 
chases from  one  of  the  defendants  therein  a  portion  of 
mortgaged  premises,  occupies  the  same  position  as  his 
grantor  in  reference  to  the  issuance  of  a  writ  of  assist- 
ance in  favor  of  the  purchaser  under  the  decree. 
(Montgomery  r'.  Byers,  21  Cal.  107.) 

§  305.  When  Writ  will  be  Refused, — If  the 
court,  in  an  action  to  foreclose  a  morteaee,  does  not 
acquire  jurisdiction  of  the  person  owning  the  land  at 
the  time  of  the  foreclosure,  a  writ  of  assistance  against 
the  owner  or  his  grantees  will  be  refused.  (Steinbach 
V.  Leese,  27  Cal.  296.) 
21 


§   306  WRIT    OF    ASSISTANCE.  322 

A  writ  of  assistance  will  not  be  issued  against  a  pur- 
chaser of  the  mortgaged  premises  who  buys  during 
the  pendency  of  a  suit  to  foreclose,  and  who  is  not  a 
party  to  the  suit,  without  actual  or  constructive  notice 
of  its  pendency.  (Harlan  r'.  Rackerby,  24  Cal.  561.). 
In  this  case  the  /is  pendens  in  the  foreclosure  suit  was 
filed  subsequent  to  the  purchase  of  the  property  from 
the  defendant  in  that  suit,  and  the  purchaser  was  en- 
titled to  be  heard  in  his  defense  before  he  could  be 
deprived  of  his  property. 

In  Langley  v.  Voll,  54  Cal.  435,  upon  an  applica- 
tion for  a  writ  of  assistance,  to  place  the  grantee  of 
the  purchaser  of  real  estate  under  a  judgment  sale 
in  possession,  it  appeared  that  the  defendants  had 
acquired,  or  claimed  to  have  acquired,  a  new  right  to 
the  possession  from  the  purchaser;  it  was  held  that 
the  writ  should  have  been  denied,  and  the  parties  left 
to  settle  their  rights  in  a  regular  suit. 

A  party  who  forecloses  a  mortgage,  given  by  one 
partner,  on,  and  obtains  a  sheriff's  deed  for,  an  un- 
divided interest  in  partnership  property,  without 
making  the  other  partner  a  party  to  the  action,  is 
not  entitled  to  a  writ  of  assistance  to  be  placed  in 
possession,  as  against  a  receiver  who  has  been  ap- 
pointed by  the  court,  at  the  instance  of  such  other 
partner,  in  an  action  commenced  by  him  to  dissolve 
the  partnership,  and  have  the  partnership  property 
sold  to  pay  the  debts.  (Autenreith  v.  Hessenauer,  43 
Cal.  356.) 

§  306.  When  Writs  of  Assistance  may  Issue. — 
The  power  of  District  (Superior)  Courts  to  issue  wTits 
of  assistance  is  limited  to  sales  on  judgments  rendered 
by  the  District  (Superior)  Court  to  which  the  applica- 


O'-O 


WRIT    OF    ASSISTANCE.  §  307 


tion  for  a  writ  of  assistance  is  made.      (People  v.  Doe, 
31  Cal.  221.) 

If  the  decree  in  a  foreclosure  suit  directs  the  sale  of 
all  the  mortgaged  premises,  and  forecloses  and  bars 
the  equity  of  redemption  of  the  defendants,  and  directs 
that  the  purchaser  at  the  sheriff's  sale  be  let  into  pos- 
session, the  person  who  receives  the  sheriff's  deed, 
after  a  sale,  is  entided  to  a  writ  of  assistance  as 
ao-ainst  all  the  defendants  who  were  served  with 
process  or  appeared  in  the  action.  This  rule  pre- 
vails as  against  a  defendant  who  is  not  mentioned  in 
the  decree  by  name,  and  also  against  one  whose  name 
is  not  mentioned  in  the  sheriff's  deed.  (Frisbie  v. 
Fogarty,  34  Cal.  11.) 

§  307.  Where  Tenants  in  Common. — It  is  the 
duty  of  the  sheriff,  in  the  execution  of  a  writ  of 
assistance,  to  place  the  purchaser  on  foreclosure  of 
morto-aee  of  an  estate  in  common  in  the  possession  of 
■every  part  and  parcel  of  the  land,  jointly  with  the 
other  tenants  in  common.  (Tevis  v.  Hicks,  38  Cal. 
234.)  In  this  case  the  sheriff  found,  on  going  to  the 
ranch  of  defendant,  that  Mrs.  Hicks,  wife  of  defendant, 
held  in  her  own  right,  as  her  separate  property,  an 
undivided  interest  in  the  whole  rancho.  derived  from  a 
source  independent  of  her  husband.  In  the  decision 
of  the  court,  "she  was  not  liable,  under  any  writ  to 
which  the  applicant  has  shown  himself  entitled,  to  be 
ejected  or  removed  from  the  rancho,  or  any  portion 
thereof;  but  she,  or  anyone  in  possession  for  her,  was 
and  is  bound  to  admit  the  applicant  to  a  joint  and 
common  possession  and  occupancy  with  her,  not  only 
of  the  house  and  two  hundred  acres  surrounding  the 
same,  but  of  every  part  and  parcel  of  the  entire 
rancho." 


^^  308-310  WRIT    OF    ASSISTANCE.  324 

§  308.  Who  not  to  be  Removed. — In  the  ex- 
ecution of  the  writ,  the  sheriff  cannot  remove  any  of 
the  tenants  in  common  who  hold  under  a  title  derived 
from  a  source  independent  of  him  through  whom  the 
purchaser  claims.     Id. 

\  309.  Alias  Writ. — If  the  return  to  the  first  writ 
does  not  clearly  declare  that  it  has  been  fully  executed, 
and  it  is  made  to  appear  by  affidavits  that  it  has  not 
been,  it  is  competent  for  the  court  to  issue  another 
writ.     Id. 

§  310.  False  Return. — If  the  sheriff  neglects  or 
refuses  to  fully  execute  the  writ,  or  makes  a  false 
return  of  his  acts  thereunder,  he  is  liable  to  the  party 
aggrieved  as  for  neglect  of  duty  or  false  return. 


CHAPTER    XIV. 


WRIT     OF     RESTITUTION. 


§311.  Requirements  of  the  Writ. 

§  312.  Writ  does  not  Determine  Right  of  Property. 

§  313.  Who  the  Sheriff  may  Dispossess. 

§  314.  Who  are  Bound  by  the  Judgment. 

§  315.  Who  the  Sheriff  may  not  Dispossess. 

§  316.  Who  may  be  Removed. 

§  317.  Notice  of  Pending  Suit. 

§318.  An  Evasion  of  Process. 

§  319.  Colorable  Possession  of  Land. 

§  320.  Possession  of  Third  Parties. 

§  321.  When  Mandamus  will  Issue. 

§  322.  Forcible  Entry  against  Sheriff. 

§  323.  Must  show  Right  of  Occupancy. 

§  324.  When  Sheriff  may  Demand  Indemnity. 

§  325.  Error  in  Writ. 

§311,  Requirements  of  the  Writ. — The  writ 
of  restitution  requires  tlie  officer  to  place  the  plaintiff 
in  possession  of  the  premises  described  therein,  and 
generally  to  make  a  money  judgment  due  to  plaintiff 
out  of  the  property  of  the  defendant.  It  is  made 
returnable  within  from  ten  to  sixty  days.  Under  it 
the  plaintiff  is  entitled  to  immediate  possession  of  the 
premises  and  to  the  money  judgment  as  soon  as  it  can 
be  made. 


§§  312.   2>^3  WRIT    OF    RESTITUTION.  326 

§  312.  Writ  does  not  Determine  Right  of 
Property. — The  writ  of  restitution,  obtained  by  the 
defendants  in  an  action  of  forcible  entry  and  detainer, 
does  not  determine  the  right  of  property,  or  the  right 
of  possession.  It  simply  decides  a  restoration  to 
immediate  possession,  which  has  been  taken  away  by 
an  illegal  and  unwarranted  ouster,  tending  to  produce 
a  breach  of  the  peace. 

§  313.  Who  the  Sheriff  may  Dispossess. — 
What  parties  can  l3e  dispossessed  under  a  writ  of 
habere  facias  possessioiiem  under  an)-  and  all  circum- 
stances, is  not  very  clear  upon  authority.  Some  cases 
go  so  far  as  to  hold  that  all  persons  who  enter  into 
possession  after  the  commencement  of  the  action, 
regardless  of  how^  or  by  what  title  the)'  entered,  must 
go  out,  upon  the  ground  that  otherwise  there  might 
be  no  end  to  litiration  ;  while  other  cases  seem  to  o-o 
no  further  than  to  hold  that  the  defendant  and  those 
entering  under  or  succeeding  to  him  in  the  possession 
of  the  land  only  need  go  out,  upon  the  ground  that 
none  are  affected  by  the  judgment  except  parties  and 
privies,  and  that  no  one  can  be  deprived  of  his  pro- 
perty without  first  having  been  allowed  his  day  in 
court  ;  "and,  we  apprehend,"  say  the  court  in  the  case 
of  Long  V.  Neville,  29  Cal.  136,  "that  these  two 
principles,  which  practically  amount  to  the  same  thing, 
together  furnish  the  true  test  for  the  solution  of  every 
case." 

It  is  the  duty  of  the  sheriff,  having  the  writ  of  Jiabere 

facias  possessionem,  to  remove  all  persons  who  came 

upon  the  property  after  the  suit  was  brought,  except 

a  person  other  than  the  defendant,  who  is  in  possession 

under  a  title  adverse  to  the  defendant. 


327  WRIT    OF    RESTITUTION.  §  SH 

Where  ejectment  is  brought  against  a  tenant  alone, 
and  pending  the  action  the  landlord  dispossesses  him 
and  leases  to  another  tenant  who  has  no  notice  of  the 
pendency  of  the  action,  it  is  the  duty  of  the  sheriff  who 
receives  the  writ  of  habere  facias  possessionem  to  remove 
the  second  tenant. 

Willis  Long  and  W.  B.  Long  commenced  an  action 
of  ejectment  against  two  persons  named  Hull,  who 
were  in  the  actual  possession  of  the  land  at  the  time 
the  action  was  brought.  The  Hulls  were  in  possession 
as  tenants  of  one  Ellis,  who  attempted  to  intervene  by 
petition,  but  the  plaintiffs  demurred,  and  the  demurrer 
was  sustained.  The  Hulls  made  default,  and  judgment 
was  entered  against  them,  and  them  only,  for  the  pos- 
session of  the  land.  Pending  the  action  of  ejectment, 
Ellis  brought  an  action  against  the  Hulls,  obtained 
judgment  and  dispossessed  the  Hulls.  Afterwards,  Ellis 
leased  the  land  to  one  Brown,  who  was  in  possession 
at  the  time  the  sheriff  received  the  writ.  The  sheriff 
refused  to  execute  the  writ  upon  Brown.  The  Supreme 
Court  held  that  Brown  came  in  under  the  same  title 
and  held  the  same  right  to  the  possession  which  was 
held  by  the  Hulls  when  the  action  was  commenced 
against  them,  and  that  the  sheriff  could  have  lawfully 
dispossessed  Brown,  and  having  failed  to  do  so,  he 
made  himself  and  his  sureties  liable. 

§  314.  Who  Bound  by  Judgments  in  Eject- 
ment.— If  a  defendant  in  ejectment  conveys  the  land 
pending  litigation,  and  the  grantee  enters  upon  the 
land  with  or  without  notice  of  the  pending  suit,  he  is 
not  only  liable  to  be  dispossessed  by  the  writ  of  resti- 
tution, if  the  plaintiff  obtains  judgment,  but  is  also 
bound  by  the  judgment,  as  an  instrument  oi  e\'idence, 


§315  WRIT    OF    RESTITUTION.  328 

to  the  same  extent  as  it  would  have  been  binding-  upon 
his  grantor,  had  no  conveyance  been  made.  (Watson 
V.  Dowhng,  2(3  Cal.  125.) 

§  315.     Who  Sheriff  may  not  Dispossess. — A 

sheriff  has  no  authority  b)-  virtue  of  a  writ  of  restitu- 
tion to  remove  from  the  premises  described  in  the 
writ  persons  who  were  not  parties  to  the  judgment 
on  which  the  writ  was  issued,  and  did  not  enter 
under  defendant  in  the  judgment  pending  the  suit. 
(Tevis  c'.  Elhs,  25  Cal.  515.)  Where  the  owner  of 
certain  real  estate,  who  was  not  a  party  in  the  suit, 
was  threatened  by  the  sheriff  with  ejectment  from  his 
land,  it  was  held  that  he  was  not  entitled  to  an  in- 
junction against  the  sheriff  The  plaintiff  and  his 
tenant  were  not  only  beyond  the  reach  of  the  writ, 
but  were  unaffected  by  the  judgment  as  an  instru- 
ment of  evidence,  and  therefore  had  nothing  to  fear 
from  either ;  that  if  the  sheriff  interfered  with  the 
plaintiff's  possession  of  the  lots,  the  writ  would  not 
only  fail  as  a  justification,  but  would  be  pertinent  to 
convict  the  sheriff  of  an  act  of  official  oppression. 

In  Watson  v.  Dowling,  the  court  held  that  where 
several  persons  are  owners  of  a  tract  of  land  as  ten- 
ants in  common,  and  the  interest  of  one  passes  to  a 
purchaser  under  execution  sale,  who  brings  ejectment 
against  the  execution  debtor  alone,  and  recovers  judg- 
ment, neither  the  other  tenants  in  common  nor  the 
grantees  who  purchase  and  enter  upon  the  land  pend- 
ing the  suit,  can  be  dispossessed  by  the  sheriff  by  virtue 
of  the  writ  of  restitution. 

Parties  in  exclusive  possession  of  land,  claiming  ad- 
versely, at  the  commencement  of  an  ejectment  suit  to 
which  they  were  not  made  parties,  are  not  affected  by 


329  WRIT    OF    RESTITUTION.  §   3^6 

the  judgment  therein.  (McLeran  v.  McNamara,  filed 
June  29th,  1882.) 

A  person  In  possession  of  the  demanded  premises 
at  the  time  of  the  commencement  of  the  action  to  re- 
cover possession,  cannot  be  removed  under  a  writ 
issued  on  a  judgment  In  the  case,  unless  he  Is  made 
defendant,  and  judgment  Is  rendered  against  him  after 
the  court  acquires  jurisdiction  of  his  person.  (Ford 
v.  Doyle,  37  Cal.  346.) 

If  neither  the  tenant  nor  his  landlord  are  parties  to 
an  action  of  ejectment,  and  the  landlord  was  In  pos- 
session when  the  suit  was  commenced,  but  subsequently 
leased  to  the  tenant,  the  tenant  cannot  rightfully  be 
removed  by  a  writ  of  restitution  Issued  In  such  action. 
(Calderwood  z'.  Pyser,  31  Cal.  ^^Z-) 

One  who.  after  an  action  of  ejectment  has  been 
commenced,  enters  upon  the  demanded  premises,  but 
does  not  enter  under  the  defendant,  or  by  collusion 
with  him,  and  is  not  made  a  party  to  the  action,  cannot 
be  removed  by  virtue  of  a  writ  of  restitution  issued 
on  a  judgment  rendered  in  the  action.  (Mayo  v. 
Sprout,  45  Cal.  99.) 

§  316.  Who  may  be  Removed. — A  party  and 
her  tenants,  coming  into  possession  of  lands,  after  an 
action  brought  to  recover  possession,  under  a  prior 
unrecorded  deed  from  two  of  the  defendants  In  the 
action,  of  which  plaintiff  had  no  notice  when  the  action 
was  commenced,  were  properly  dispossessed  under  a 
writ  of  restitution,  issued  on  a  judgment  for  plaintiff 
In  said  action.      (Mayne  v.  Jones,  34  Cal.  483.) 

In  the  case  of  Sampson  v.  Ohleyer,  where,  pending 
an  action  of  ejectment  against  a  tenant,  the  latter  trans- 
ferred the  possession  to  his  landlord,  who  had  actual 


§§  ?)^7>   31S  WRIT    OF    RESTITUTION. 


OJ^ 


notice  of  and  defended  die  suit,  Ijut  was  not  made  a 
part)',  and  plaintiff  recovered  judo-nient ;  it  was  held 
that,  under  the  writ  of  restitution  authorized  by  the 
judgment,  the  landlord  might  be  dispossessed. 

In  ejectment  against  the  occupant  of  the  premises,  a 
judgment  of  recovery  binds  not  only  the  defendant  but 
all  persons  who  receive  possession  of  the  premises  from 
him  with  actual  notice  of  the  pending  suit. 

If  the  plaintiff  in  ejectment  dies  after  a  judgment  in 
his  favor  has  been  rendered,  a  writ  of  restitution  may 
be  issued  on  the  judgment,  at  the  instance  and  for  the 
benefit  of  his  successor  in  interest  in  the  property. 
(Franklin  z'.  Merida,  50  Cal.  289.) 

Under  a  writ  of  possession  against  the  husband,  his 
wife  should  be  dispossessed,  her  only  holding  being 
such  as  she  had  by  virtue  of  her  marital  relations  with 
the  defendant  in  the  writ. 

§  317.  Notice  of  Pending  Suit. — The  27th  sec- 
tion of  the  Practice  Act  (§  409,  C.  C.  P.),  relating  to 
the  filing  of  lis  pendens,  does  not  apply  to  actions  of 
ejectment,  but  to  proceedings  in  chancery,  the  pur- 
pose of  which  is  to  turn  equitable  estates  into  legal 
ones,  or  to  enforce  liens  upon  legal  estates.  (Wat- 
son V.  Dowling,  26  Cal.  125.) 

§  318.  An  Evasion  of  Process. — If  the  defend- 
ant, pending  an  action  against  him  to  recover  posses- 
sion of  land,  colludes  with  another  person  to  obtain 
judgment  against  him  for  possession,  and  to  be  placed 
in  possession  by  a  writ  of  restitution,  such  other  person 
must  go  out  under  a  writ  of  possession  against  the 
defendant.  He  will  not  be  protected  by  his  judgment, 
if  it  was  collusively  obtained.  (Wetherbee  v.  Dunn, 
36  Cal.  147.) 


331  WRIT    OF    RESTITUTION.  §§   3 1 9-3  2  I 

§  319.  Colorable  Possession  of  Land. — Where 
a  defendant  in  ejectment  has  taken  possession  of  land 
in  collusion  with  the  plaintiff,  for  no  other  purpose  than 
to  afford  such  plaintiff  a  pretext  to  take  possession 
under  a  writ  of  restitution,  such  pretended  possession 
will  be  disregarded.  (South  Beach  L.  Association  v. 
Christy,  41  Cal.  501.) 

§320.     Possession    of    Third   Parties.  —  If  the 

plaintiff  obtains  judgment  in  an  action  of  forcible  entry 
and  detainer,  but  does  not  obtain  possession  of  the 
property,  and  a  writ  of  restitution  is  not  issued,  and 
the  judgment  is  afterwards  reversed,  and  the  action 
dismissed,  and  during  the  pendency  of  the  action  third 
parties  obtain  possession  of  the  property  by  collusion 
with  a  servant  of  the  defendant,  the  defendant  is  not 
entitled  to  a  writ  to  be  restored  to  possession  as  against 
these  third  parties.  (Bowers  v.  Cherokee  Bob,  46  Cal. 
280.) 

§  321.  When  Mandamus  will  Issue. — In  an 
action  for  a  forcible  and  unlawful  entry  and  detainer  of 
a  mine,  against  a  corporation  and  C.  and  V,,  the  jury 
returned  a  verdict  of  guilty  as  to  C.  and  V.,  and  not 
guilty  as  to  the  corporation  :  Held,  that  such  a  verdict 
is  conclusive  that  the  plaintiff  was  peaceably  in  actual 
possession  of  the  premises  at  the  time  of  the  entry  ; 
that  unlawful  and  forcible  entry  on  his  possession  was 
made  by  the  defendants,  C.  and  V.,  and  that  the  cor- 
poration did  not  participate  in  the  trespass. 

The  peaceable  and  actual  possession  of  the  plaintiff 
is  incompatible  with  the  lawful  possession  of  another  ; 
and  such  a  verdict  is  conclusive  against  the  possession 
of  the  corporation. 


§§  3--'  3-3  WRIl"    OF    RESTITUTION.  332 

Wliere  a  writ  of  restitution  has  been  awarded  in  such 
a  case,  and  the  sheriff  refuses  to  execute  the  same,  on 
the  ground  that  the  mine  is  in  the  possession  of  certain 
persons  not  parties  to  the  suit,  who  claim  to  hold  under 
the  corporation,  the  court  will  award  a  peremptory 
mandamus  against  the  sheriff  to  compel  him  to  execute 
the  writ, 

To  supersede  the  remedy  by  mandanms,  a  party 
must  not  only  have  a  specific  adequate  legal  remedy, 
but  one  competent  to  afford  relief  upon  the  very  sub- 
ject matter  of  his  application. 

Neither  a  remedy  by  criminal  prosecution,  nor  by 
action  on  the  case  for  neglect  of  duty,  will  supersede 
that  by  inaiidanms,  since  it  cannot  compel  a  specific  act 
to  be  done,  and  is,  therefore,  not  equally  convenient, 
beneficial  and  effectual.  (Fremont  v.  Crippen,  lo  Cal. 
212.) 

§  322.  W^hen  Forcible  Entry  will  not  Lie 
against  Sheriff. — An  action  under  the  Act  concern- 
ing forcible  entries  and  unlawful  detainers  will  not  lie 
against  a  party  who  has  been  put  in  possession  by  a 
sheriff  in  good  faith,  by  virtue  of  a  writ  of  restitution, 
even  if  the  person  turned  out,  and  who  brings  the 
action,  was  one  whom  the  officer  could  not  lawfully 
dispossess  by  virtue  of  the  writ.  (Janson  v.  Brooks, 
29  Cal.  214.)  Nor  is  the  sheriff  guilty  of  a  forcible 
entry,  if  acting  in  good  faith,  therein. 

§  323.  Must  Show  Right  of  Occupancy. — A 
person  in  possession  of  land  where  a  writ  of  restitu- 
tion is  served,  is  presumed  to  hold  under  the  defend- 
ant in  the  action,  and  to  avoid  being  dispossessed  by 
the  writ,  must  show  affirmatively  that   he   holds   by  a 


2,33  WRIT    OF    RESTITUTION.  §§  324,   325 

right  independent  and  paramount.      (Sampson  z>.  Oh- 
leyer,  22  Cal.  200.) 

§  324.  When  Sheriff  may  Demand  Indemnity 
Bond. — When  a  sheriff  goes  to  execute  a  writ  of 
possession  issued  on  a  judgment  in  an  action  to  re- 
cover land,  if  he  finds  other  parties  in  possession 
than  those  named  In  the  complaint,  who  claim  that 
they  are  rightfully  in  possession,  not  in  privity  with 
the  defendants,  and  the  circumstances  are  such  that 
a  reasonable  doubt  exists  whether  the  sheriff  has  a 
right  to  turn  them  out,  the  sheriff  may  demand  in- 
demnity, and,  unless  it  is  given,  may  refuse  to  exe- 
cute the  writ.  This  is  the  law,  even  if  the  premises 
are  specifically  described  in  the  writ.  (Long  27.  Neville, 
36  Cal.  455.) 

If  a  sheriff  has  wrongfully  turned  a  person  out  of 
possession  of  land  under  a  writ  of  restitution,  he  will 
be  restored  by  the  court  to  the  possession,  on  motion 
made  for  that  purpose.  (S.  B.  Land  Ass.  v.  Christy, 
41  Cal.  501;  Mayo  z'.  Sprout,  45  /{/.  99.) 

§  325.  Error  in  Writ. — In  an  action  of  ejectment, 
if  the  execution  correctly  refers  to  a  judgment,  in 
such  manner  as  to  identify  it,  it  is  sufficient  to  justify 
the  sheriff"  in  enforcing  it,  even  If  it  contains  an  error 
in  reciting  the  day  on  which  the  judgment  had  been 
rendered.      (Franklin  z>.  Merida,  50  Cal.  289.) 


CHAPTER  XV. 


SUITS    AGAINST    SHERIFFS    AND    CONSTABLES. 


§  326.  Limit  of  Time  for  Actions  Against  Officers. 

§  327.  Penalty  for  not  Paying  over  Moneys. 

§  328.  Demand  for  Property  Wrongfully  Taken. 

§  329.  Sheriff's  Notice  to  Sureties. 

§  330.  Defect  in  Sheriff's  Bond. 

§  331.  Remedy  Against  Sheriff. 

§  332.  Officer  not  Responsible  through  Laches  of  Another. 

§  333.  Defense  in  Action  for  Neglect. 

§  334.  Liability  of  Sheriff's  Sureties. 

§  335.  Liability  of  Sureties  on  Indemnity  Bonds. 

^  336.  Liability  for  Illegal  Levy. 

§  337.  When  Previous  Demand  not  Necessary. 

^  338.  When  Demand  Necessary. 

§  339.  Justification  for  Seizure. 

§  340.  Duress  of  Goods. 

§  341.  Estoppel  of  Owner  of  Attached  Property. 

§  342.  Receipt  to  Sheriff  as  Estoppel. 

i^  343.  Liability  of  Officers  and  Sureties  for  Trespass. 

^5  344.  Action  for  Trespass. 

§  345.  Bond  to  Indemnify  Sheriff  for  Unlawful  Act. 

§  346.  Violation  of  Duty  by  Sheriff. 

§  347.  Agreement  to  Indemnify  Sheriff. 

§  348.  Conditions  of  Indemnity  Bond. 

§  349.  Plaintiff  Bound  by  his  Bond. 

§  350.  Judgment  against  Sheriff. 

45;  351.  An  Estoppel  that  Protects  Sheriff. 

^  352.  Simple  Trespass. 

^  353.  Sheriff  Liable  for  Acts  of  Deputy. 


335  SUITS SHERIFFS  AND  CONSTABLES.        §§  326,  327 

§  354.  When  Judgments  cannot  be  Set  Off. 

§  355-  Release  of  Sheriff  by  Stipulation. 

§  356.  Measure  of  DamJiges. 

§  357.  Offices  of  Sheriff"  and  Tax  Collector  Separate. 

§  358.  Actions  upon  Undertakings. 

§  326.  Limit  of  Time  for  Actions  against 
Officers. — An  action  cannot  be  commenced  after  two 
years  against  a  sheriff,  coroner,  or  constable,  upon  a 
liability  incurred  by  the  doing  of  an  act  in  his  official 
capacity,  and  in  virtue  of  his  office,  or  by  the  omis- 
sion of  an  official  duty,  including  the  non-payment 
of  money  collected  upon  an  execution.  An  action 
cannot  be  commenced  after  the  lapse  of  one  year, 
against  a  sheriff  or  other  officer  for  the  escape  of  a 
prisoner  arrested  or  imprisoned  on  civil  process.  An 
action  cannot  be  maintained,  unless  commenced  within 
six  months,  against  an  officer,  or  officer  dc  facto,  to 
recover  any  goods,  wares,  merchandise,  or  other 
property,  seized  by  any  such  officer  in  his  official  ca- 
pacity as  tax-collector,  or  to  recover  the  price  or  value 
of  any  goods,  wares,  merchandise,  or  other  personal 
property  so  seized,  or  for  damages  for  the  seizure,  de- 
tention, sale  of,  or  injury  to  any  goods,  wares,  mer- 
chandise, or  other  personal  property  seized,  or  for 
damages  done  to  any  person  or  property  in  making 
any  such  seizure. 

It  is  also  held  by  the  Supreme  Court  that  it  was  not 
the  intention  to  allow  a  longer  period  for  commencing 
an  action  against  a  sheriff  and  his  sureties  "for  a  lia- 
bility  incurred  by  doing  an  act  in  his  official  capacity," 
than  is  allowed  for  commencing  an  action  against  him 
alone  for  it. 

§  327.     Penalty  for  not  Paying  over  Moneys. — 


§   3^8  SUITS SHERIFFS  AND  COXSTABLES.  336 

The  statute  penalty  against  sherifts  for  the  non-payment 
of  moneys  collected  on  execution  are  only  recoverable 
when  the  sheriff,  by  his  return,  admits  the  collection  of 
the  money,  but  refuses  to  pay  it  over.  If  It  were  other- 
wise, an  error  in  judgment,  or  even  a  hesitation  to 
decide  between  adverse  claimants,  might  work  the  ruin 
of  any  honest  and  conscientious  officer.  The  statute 
o-ives  twenty-five  per  cent,  damages  on  the  amount 
collected,  and  ten  per  cent,  per  month  In  addition,  from 
the  time  of  the  demand.  It  not  unfrequently  occurs 
that  a  sheriff,  on  account  of  contests  between  creditors, 
and  his  own  Inability  to  decide  the  right,  declines  a 
demand,  which  turns  out  to  have  been  justly  and  prop- 
erly made.  In  such  a  case,  to  deprive  him  of  the 
benefit  of  his  return,  and  visit  upon  him  the  heavy 
penalties  of  the  statute  for  falling  to  pay  the  money  on 
demand,  would  be  a  cruelty  and  Injustice  which  the  law 
never  contemplated.  The  argument,  that  sheriffs  might 
avail  themselves  of  this  doctrine  and  make  false  returns, 
so  as  to  avoid  the  penaldes  of  the  Act.  should  be  with- 
out any  weight,  and  not  entlded  to  consideration.  The 
courts  will  presume  that  every  officer  will  faithfully 
perform  his  duty,  and  has  done  so  in  every  instance, 
until  the  contrary  is  shown. 

§  328.  Demand  on  Sheriff  for  Property  Wrong- 
fully Taken. — if  a  sherift',  by  virtue  of  an  execution, 
seizes  the  property  of  a  person  other  than  the  judg- 
ment debtor,  whether  by  mistake  or  design,  It  is  not 
necessary  for  the  owner  of  the  property  thus  seized  to 
make  a  demand  on  the  sheriff  before  commencing  suit. 
(Boulware  v.  Craddock,  30  Cal.  190.)  The  sheriff 
having  misapplied  his  process,  stands  in  the  position 
of  every  other  trespasser,  and  Is  liable  to  an  action  the 


2,;^y  SUITS — sheriffs  and  constables.  §  329 

instant  the  trespass  is  committed.  The  circumstance, 
that  the  property  may  have  been  in  the  possession  of 
the  execution  debtor  at  the  date  of  the  seizure,  amounts 
to  nothing  except  upon  proof  of  fraud  or  commixture. 
In  the  case  above  cited,  the  court  say:  "The  rule  of 
the  common  law  is  correctly  stated  in  Ledly  v.  Hays, 
I  Cal.  160,  and  the  correctness  of  that  decision  is 
impliedly  recognized  in  Daumiel  z'.  Gorham,  6  Cal.  44. 
The  statement  of  facts  in  Taylor  z>.  Seymour,  6  Cal. 
512,  is  imperfect ;  but  if  that  case  is  to  be  understood 
as  laying  clown  a  different  rule,  then  we  prefer  to 
follow  Ledly  z>.  Hays." 

§  329.  Sheriff's  Notice  to  Sureties. — It  is  of  the 
greatest  importance  to  an  officer  that  the  sureties  on 
an  indemnity  bond  given  to  him,  be  promptly  notified 
of  any  suit  brought  against  him  by  a  party  claiming 
property  seized  under  process.  §  1055  of  -he  Code 
of  Civil  Procedure  provides  that  "if  an  action  be 
brought  against  a  sheriff  for  an  act  done  by  virtue  of 
his  office,  and  he  give  written  notice  thereof  to  the 
sureties  on  any  bond  of  indemnity  received  by  him, 
the  judgment  recovered  therein  shall  be  conclusive 
evidence  of  his  right  to  recover  against  such  sureties ; 
and  the  court  may,  on  motion,  upon  notice  of  five 
days,  order  judgment  to  be  entered  up  against  them 
for  the  amount  so  recovered,  including  costs." 

If  a  sheriff  is  indemnified  for  an  act  done  by  vir- 
tue of  his  office,  and  an  action  is  brought  against 
him  to  recover  damages  for  the  act,  and  judgment  is 
recovered  against  him,  the  sheriff  cannot  afterwards 
have  judgment  against  the  sureties  on  the  indemnify- 
ing bond  upon  a  notice  of  five  days,  unless  he  give 
the  sureties  written  notice  of  the  action  brought 
22 


§§  330-33-        SUITS SHERIFFS  AND  CONSTABLES.  338 

against  him.  He  cannot  avail  himself  of  this  remedy, 
but  is  left  to  his  action  upon  the  indemnity  bond. 
(Dennis  v.  Packard,  28  Cal.  loi.) 

§  330.  Defect  in  Sheriff's  Bond. — The  defect  in 
the  approval  of  a  sheriff's  bond  cannot  be  set  up  as 
a  defense  in  an  action  on  said  bond  against  the  sure- 
ties. The  object  of  the  law  in  requiring  the  approval, 
is  to  insure  greater  security  to  the  public,  and  it  does 
not  lie  in  the  obligors  to  object  that  their  bond  was 
accepted  without  proper  examination  into  its  suffi- 
ciency by  the  officers  of  the  law. 

Where  the  obligors,  in  a  sheriff's  bond,  bind  them- 
selves, jointly  and  severally,  in  specific  sums  desig- 
nated, they  may  all  be  joined  in  the  same  action,  but 
separate  judgments  are  required. 

The  sureties  of  a  sheriff  are  not  liable  for  the  pen- 
alty imposed  upon  sheriffs  by  §  4179  of  the  Political 
Code  for  a  neglect  to  levy  upon  property.  The  sure- 
ties are  liable  only  for  actual  damages  sustained. 
(Glascock  V.  Ashman,  52  Cal.  493.) 

§  331.  Remedy  Against  Sheriff. — The  remedy 
by  motion  against  a  sheriff  and  his  sureties,  to  com- 
pel him  to  pay  over  money  collected  on  execution, 
was  only  given  for  cases  of  intentional  delinquency 
on  the  part  of  the  sheriff,  as  a  punishment  for  his 
willful  or  corrupt  neglect  of  duty,  and  was  not  de- 
signed to  embrace  a  case  in  which  he  declined  to  pay 
over  moneys  collected  under  circumstances  of  a  bona 
fide  well-grounded  doubt  of  the  authority  of  the  party 
to  demand  it.      (Wilson  v.  Broder,  10  Cal.  486.) 


§  332.    Officer  not  Responsible  through  Laches 


339  SUITS SHERIFFS  AND  CONSTABLES.        §§  T,;^^,  334 

of  Another. — It  is  held,  in  Lick  v.  Madden,  36  Cal. 
208,  wherein  a  county  clerk  was  sued  for  an  alleged 
failure  to  perform  his  duty  in  the  matter  of  issuing  a 
writ  of  attachment,  that  "Although  public  officers 
should  be  made  to  answer  in  damages  to  all  per- 
sons who  may  have  been  Injured  through  their  mal- 
feasance, omission,  or  neglect,  but  if  the  damages 
would  have  been  sustained,  notwithstanding  the  mal- 
conduct  of  the  officer,  or  if  the  injured  party  has  by 
his  fault  or  neelect  contributed  to  the  result,  the  officer 
cannot  be  held  responsible." 

§  333.  Defense  in  Action  Against  Sheriff  for 
Neglect. — In  an  action  against  a  sheriff  for  refusing 
to  levy  an  attachment  on  certain  property  as  belonging 
to  the  attachment  debtor,  testimony  that  the  prop- 
erty had  been  claimed  by  a  third  party,  and  the  right 
of  property  tried  before  a  sheriff's  jury,  and  decided 
in  favor  of  claimant,  is  irrelevant  and  inadmissible, 
when  those  facts  have  not  been  set  up  as  new  mat- 
ter of  defense  in  the  answer.  (Strong  v.  Patterson,  6 
Cal.  156.)  As  under  the  statute,  the  plaintiff,  after 
the  introduction  of  such  testimony,  would  be  bound 
to  show  that  he  had  tendered  an  indemnity  bond,  he 
may  well  complain  that  he  is  taken  by  surprise,  the 
issues  not  being  tendered  by  the  pleadings.  The  ob- 
jection to  the  introduction  of  such  testimony  on  the 
ground  that  it  is  irrelevant,  is  sufficient. 

§  334.  Liability  of  Sheriff's  Sureties. — Sureties 
on  the  sheriff's  official  bond  in  this  State  are  entided 
to  stand  upon  the  precise  terms  of  their  contract,  by 
which  they  stipulate  for  his  official,  not  his  personal, 
dealings.     In  the  case  of  Schloss  v.  White,  sheriff,  16 


§  334  SUITS SHERIFFS  AND  CONSTABLES.  34O 

Cal.  68.  suit  brought  on  a  sheriff's  bond  against  the 
officer  and  his  sureties,  the  plaintiff  sued  out  attachment 
against  one  Kalkmann,  and  had  it  levied  on  some  goods. 
Other  creditors  issued  similar  process,  also  levied  on 
the  same  goods  ;  and  afterwards  the  plaintiff  dismissed 
his  proceeding,  and  claimed  that  the  goods  levied  on, 
or  a  part  of  them,  were  his  own  property,  the)'  having 
been  procured  by  Kalkmann  by  false  pretenses.  The 
plaintiff  sued  the  sheriff  in  replevin.  He  did  not  take 
the  goods  out  of  the  sheriff's  possession,  but  came  to 
an  arrangement  with  the  sheriff,  whereby  the  sheriff 
agreed  to  sell  the  goods  and  keep  the  proceeds  to 
answer  the  judgment,  if  the  plaintiff  obtained  one  in 
his  replevin  suit.  The  sheriff  sold  the  goods  and  paid 
the  money  into  court,  saying  nothing  about  this  arrange- 
ment ;  and  the  money  was  paid,  under  the  order  of  the 
court,  on  the  claim  of  the  other  creditors.  The  court 
held  as  follows:  "The  sureties  of  the  sheriff  had 
nothing  to  do  with  and  gave  no  sanction  to  this  arrange- 
ment. The  question  is,  are  they  bound  to  the  plaintiff 
for  the  goods  or  the  money  received  from  the  sale — 
the  plaintiff  having  obtained  judgment  in  the  replevin 
suit  ?  We  think  they  are  not.  It  was  no  part  of  the 
sheriff's  duty  to  make  this  agreement  with  the  plaintiff 
to  sell  the  goods  and  to  hold  the  proceeds  for  the 
plaintiff  in  a  certain  event.  He  had  no  legal  authority, 
as  sheriff,  to  sell  these  goods  and  to  hold  the  money 
on  bailment  for  the  plaindff.  If  the  plaintiff  trusted 
him  with  the  custody  of  the  goods,  and  gave  him 
authority  to  sell  them,  he  became,  so  far.  the  agent  of 
the  plaintiff,  and  the  plaintiff  must  look  to  him  merely 
as  his  agent  ;  he  cannot  hold  the  sureties  bound  for 
executory  contracts  of  this  sort,  entered  into  without 
their  consent.     If  so,  there  would  be  scarcely  a  limit  to 


341  SUITS SHERIFFS  AND  CONSTABLES.  §  335 

their  responsibility  ;  for  contracts  of  this  sort  might  run 
for  years,  and  represent  every  variety  of  compHcation. 
If  the  sheriff  had  retained  the  o-oods,  he  mio-ht  have 
obtained  a  bond  of  indemnity  from  the  other  creditors  ; 
or  if  the  plaintiff  had  given  bond,  he  might  have  re- 
lieved the  sheriff  from  the  custody  of  the  goods.  But 
here,  the  sheriff  assumes,  by  this  agency,  a  responsi- 
bility for  himself  and  his  sureties,  greater  in  degree  and 
different  in  kind  from  that  imposed  by  law,  and  it 
would  be  unjust  and  impolitic  to  encourage  such  deal- 
ings by  holding  sureties  responsible  for  them," 

§  335.  Liability  of  Sureties  on  Indemnity 
Bonds. — Where  a  sheriff  seizes  goods  on  two  attach- 
ments in  behalf  of  different  plaintiffs,  and  the  property 
being  claimed  by  a  third  person,  the  plaintiffs  in  the 
attachment  suits  execute  to  the  sheriff  separate  in- 
demnifying bonds,  there  is  no  joint  liability  between 
the  plaintiffs  to  the  sheriff.  Each  bond  must  be  sued 
on  as  an  independent  obligation.  (White  v.  Fratt,  1 3 
Cal.  521.)  Where  an  indemnity  bond  is  given  to  a 
sheriff  to  hold  him  harmless,  and  pay  any  judgment 
which  may  be  rendered  against  him  by  reason  of  his 
seizure  of  certain  property,  his  remedy  at  law  on  the 
bond  is  clear  for  the  amount  of  any  such  judgment, 
whether  he  be  solvent  or  not,  or  whether  his  official 
sureties  could  be  held  or  not,  and  a  bill  in  equity  will 
not  lie. 

A  bond  was  given  by  a  plaintiff  to  a  constable  to 
indemnify  him  from  liability  for  selling  certain  property 
claimed  and  actually  owned  by  persons  other  than  the 
execution  debtor ;  and  the  property  having  been  sold, 
and  the  owners  having  sued  the  constable  and  re- 
covered judgment  against  him,  the  latter  assigned  the 


^  S3^  SUITS SHERIFFS  AND  CONSTABLES.  342 

bond  to  them,  and  they  released  him  from  Habihty  on 
the  judgment:  //c'/(/  (in  McBeth  z'.  Mclntyre,  57  Cal. 
49),  that  the  release  of  the  constable  did  not  operate 
to  release  the  obligors  on  the  bond.  Substantially, 
the  constable  paid  the  judgment  against  him,  by 
assieninor  the  bond. 

In  an  action  by  a  sheriff  on  an  indemnity  bond,  it 
appeared  that  after  its  execution  the  bond  had  been 
altered  by  substituting  "C.J.  Hubner"  for  "J.  M. 
Berry."  as  the  claimant  of  the  property  seized  by  the 
sheriff,  and  afterwards  and  before  the  trial,  by  erasing 
the  former  and  restoring  the  latter  name,  thus  restor- 
ino-  it  to  its  orig-inal  condition  ;  but  there  was  no 
allegation  or  proof  that  the  alterations  were  made 
with  a  fraudulent  desicrn,  or  that  the  defendants  could 
possibly  be  injured  by  them  :  //cM  (Rogers  e-.  Shaw, 
59  Cal.  260),  that  the  alterations  did  not  render  the 
instrument  void. 

§  2,3^-  Illegal  Levy. — If  the  sheriff  levies  upon 
the  property  of  a  person  not  a  party  to  the  execu- 
tion, he  is  responsible  in  an  action  at  law.  He  has 
becom.e  a  trespasser,  as  against  the  rights  ot  the 
owner  of  the  property.  The  statute  allows  him  to 
try  the  rights  of  property  and  the  protection  of  an 
indemnity  bond.  The  procedure  in  such  cases  has 
been  pointed  out  elsewhere  in  this  volume.  If  he 
cannot  safely  hold  the  property  he  is  entided  to  in- 
demnity from  the  plaintiff.  He  has  no  protection 
by  the  verdict  of  a  jury  on  the  trial  of  the  rights 
of  property  under  the  provisions  of  §§  549  and 
689  of  the  Code  of  Civil  Procedure,  as  such  pro- 
ceedings are  not  judicial.  If  the  sheriff  take  prop- 
erty   not    belonging    to    the    defendant    in    the    writ. 


343  SUITS SHERIPTS  AND  CONSTABLES.  ^33/ 

whether  in  his  possession  or  not,  the  taking  is  tor- 
tious. 

§  337-  W'hen  Previous  Demand  not  Neces- 
sary.—  If  the  original  possession  of  property  is  ac- 
quired by  a  tort,  no  demand  previous  to  the  institution 
of  a  suit  is  necessary.  (Sargent  zj.  Sturm,  23  Cal. 
359.)  Affirmed  in  Wellman  z>.  EngHsh,  38  Cal.  584. 
See  also  Boulware  z>.  Craddock,  30  Cal.  190,  which 
overrules  all  cases  subsequent  to  and  in  conflict  with 
Ledly  27.  Hays,  i  Cal.  160,  on  this  point.  In  the  case 
of  Paige  z>.  O'Neal,  12  Cal.  483,  the  court  declares: 

"It  was  not  essential  to  aver  a  demand  of  the 
defendant  of  the  wheat  in  controversy  in  the  com- 
plaint, or  to  prove  a  demand  on  the  trial.  If  the 
property  in  fact  belonged  to  the  plaintiff — and  it  is 
upon  this  theory  the  suit  is  brought,  and  to  this  effect 
the  evidence  tended  when  the  plaintiff  rested  —  the 
seizure  by  the  defendant  was  tortious  ;  and  it  is  a 
general  rule  that  where  the  possession  of  property  is 
originally  acquired  by  a  tort,  no  demand  previous  to 
the  institution  of  a  suit  for  its  recovery  is  necessary. 
It  is  only  when  the  original  possession  is  lawful,  and 
the  action  relies  upon  the  unlawful  detention,  that  a 
demand  is  required." 

In  the  case  of  Woodworth  z^.  Knowlton,  22  Cal. 
169,  the  court  say:  "The  evidence  and  pleadings 
show  clearly  that  the  plaintiff  was  the  owner  of  the 
property,  and  in  possession  at  the  time  of  the 
levy  of  the  attachment,  and  we  see  nothing  in 
the  evidence  showing  a  right  of  possession  in  any 
person  other  than  the  plaintiff  at  the  time  of  the 
commencement  of  the  suit.  The  attachment  gave  the 
defendant  no  authority  to  take  the  property  owned 
by  the  plaintiff,  and  his  seizure  of  the  property  was 


§  33^  SL  ITS SHERIFFS  AND  CONSTABLES.  344 

therefore  wrongful  and  unlawful.  If  any  demand 
whatever  was  necessar)-  in  this  case,  which  is  not  very 
clear,  it  was  sufficient  to  make  that  demand  of  the 
party  in  actual  possession,  and  who  was  able  to  com- 
ply with  it,  and  it  would  have  been  but  an  idle  cere- 
mony to  make  the  demand  of  Atherton  or  Griffin, 
who  could  not  have  complied  with  it  had  they  been 
willing-  to  do  so." 

§  338.  When  Demand  Necessary. — In  the  case 
of  Kelley  v.  Scannell,  1 2  Cal.  yi,,  the  Supreme  Court 
held  that  notice  of  claim  and  demand  for  the  prop- 
erty was  necessary  on  the  part  of  the  claimant. 
This  was  an  action  to  recover  the  possession  or  the 
value  of  certain  personal  property,  comprising  the 
furniture,  fixtures,  and  stock  of  the  "  Empire  State 
Saloon."  The  property  was  on  the  19th  of  February, 
1857,  seized  by  the  defendant  as  sheriff  of  San  Fran- 
cisco county,  under  an  attachment  against  one  Wilson. 
Prior  to  the  seizure  of  the  property  by  the  defendant, 
the  plaintiff,  by  an  instrument  in  writing,  bargained 
and  sold  the  property  to  Wilson,  and,  by  the  terms  of 
the  agreement,  the  property  was  to  be  delivered  and 
paid  for  on  the  14th  of  February,  1857.  On  that  day 
Wilson  paid  a  part  of  the  purchase-money,  and  the 
time  for  the  payment  of  the  balance  was  extended  to 
February  24th.  On  the  14th  of  February,  Wilson 
and  one  Kirk  were  in  possession  of  the  property,  and 
appear  to  have  been  the  proprietors  of  the  saloon. 
This  possession  continued  up  to  the  time  of  the 
seizure  of  the  property  of  the  defendant  as  sheriff. 
The  plaintiff's  complaint  contains  no  allegation,  nor 
was  there  any  proof  on  his  part,  of  notice  of  his 
claim  or  demand  of  the  property,  prior  to   the   bring- 


345  SUITS SHERIFFS  AND  CONSTABLES.  §   339 

ing  of  this  action.  Plaintiff  had  judgment  in  the  4th 
District  Court,  and  the  Supreme  Court  granted  a  new 
trial,  holding  that  "defendant  having  seized  the  prop- 
erty by  virtue  of  his  office  and  process,  while  in  the 
possession  of  the  party  defendant  mentioned  in  the 
writ,  was  entitled  to  notice  and  demand  from  plaintiff 
before  he  can  be  held  liable  to  an  action  for  the  pos- 
session or  value." 

Where,  at  the  time  of  the  levy  of  a  second  execution 
(the  first  having  been  quashed),  the  goods  first  levied 
upon  had  passed  by  sale  to  a  third  party,  and  were 
mixed  with  other  goods  subsequently  purchased,  which 
last  goods  were  alleged  to  be  liable  to  the  execution, 
it  was  held,  in  the  case  of  Wellinorton  z'.  Sedowick,  1 2 
Cal.  470,  that  if  they  were  so  mixed  or  confounded  with 
other  goods  as  that  they  could  not  be  identified  or 
distinguished,  and  Wellington  failed  to  point  out  to 
the  sheriff,  or  desicr-nate  the  croods  which  were  not 
subject  to  execution,  the  sheriff  could  not  be  liable  for 
levying  on  the  whole.  But  the  sheriff  would  be  bound, 
after  the  levy,  on  notice  to  him  of  the  goods  not  liable, 
to  restore  them  ;  but  this  notice  must  be  specific, 
apprising  him  of,  and  designating,  the  particular  goods 
improperly  seized,  and  must  be  given  previously  to 
suit  brought. 

§  339-  Justification  for  Seizure. — An  officer,  in 
order  to  justify  the  seizure  of  property  in  the  posses- 
sion of  a  stranger  to  the  writ  which  he  has  executed, 
must  plead  specially  such  justification.  He  cannot 
justify  under  a  general  denial  of  the  allegations  of  the 
complaint. 

The  general  denial  only  puts  in  issue  the  allegations 
of  the    complaint.       New    matter   must   be   specially 


§  339  SUITS SHERIFFS  AND  CONSTABLES.  346 

pleaded,  and  new  matter  is  that  which  the  defendant 
must  affirmatively  establish.      (Glazer  v.  Clift,  lo  Cal. 

304-) 

Where,  in  an  action  against   the  sheriff  for  taking 

goods,  he  justifies  under  an  attachment  against  a  third 
person,  it  is  not  necessary  that  his  answer  should  set 
forth  minutely  every  fact  relating  to  the  attachment 
suit.  An  answer  which  stated  the  time  of  commence- 
ment of  the  action,  the  names  of  parties,  the  court,  and 
that  the  goods  were  taken  by  virtue  of  a  writ  of  attach- 
ment issued  therein,  held  to  be  sufficient.  (Towdy  v. 
Ellis,  22  Cal.  651.) 

When  property  is  taken  from  the  possession  of  the 
defendant  by  the  officer  levying  thereon,  it  is  sufficient 
to  introduce  (in  suit  against  the  sheriff),  in  evidence, 
the  attachment  or  execution  under  which  the  levy  is 
made  ;  but  when  found  in  the  possession  of  a  stranger 
claiming  tide  to  the  property  so  seized,  it  is  likewise 
necessary  to  show  a  judgment,  or  prove  the  debt  for 
which  judgment  is  demanded  in  the  attachment  suit. 
(Sexey  v.  Adkinson,  34  Cal.  346.) 

If  an  officer  seizes  the  property  of  the  debtor,  and 
the  writ  be  regular  on  its  face,  it  is  a  sufficient  jusdfica- 
tion  to  him  ;  for  the  defendant  may,  if  the  attachment 
has  been  improvidently  issued,  move  to  have  it  quashed 
or  bring  a  suit  upon  the  undertaking;  but  a  third 
party,  a  stranger  to  the  record,  could  not  interfere, 
and,  therefore,  it  would  seem  but  justice,  that  before 
any  right  could  be  established  against  him,  by  reason 
of  a  proceeding  to  which  he  was  not  a  party,  that  its 
regularity  should  be  shown.  An  officer  who  seizes 
property  in  the  hands  of  the  debtor,  may  justify  under 
the  execution  or  process  ;  but  when  he  takes  property 
from  a  third    person,    who  claims   to    be    the    owner 


347  SUITS SHERIFFS  AND  CONSTABLES.  §   339 

thereof,  he  must  show  the  judgment  and  execution  ; 
if  an  attachment,  the  writ  of  attachment  and  the  pro- 
ceedinofs  on  which  it  was  based. 

In  the  case  of  Norcross  v.  Nunan,  sheriff,  etc., 
(opinion  filed  November  2,  1882),  which  was  an  action 
for  the  recovery  of  personal  property  or  its  value,  and 
for  damages  for  its  detention,  the  court  below  retused 
to  admit  the  writ  of  attachment  in  evidence.  On  appeal 
Mr.  Justice  Myrick  delivered  the  following  opinion  of 
the  court:  "  This  was  an  action  for  the  recovery  of 
personal  property  or  its  value,  and  for  damages  for  its 
detention.  But  the  plaintiff  did  not  claim  the  delivery 
of  the  property  to  him  before  judgment.  The  defend- 
ant, sheriff,  justified  under  a  writ  of  attachment  and  an 
execution. 

"I.  Conceding  that  the  court  below  was  correct  in 
refusing  to  admit  the  writ  of  attachment  in  evidence 
because  of  the  defect  in  the  affidavit,  in  stating  that  the 
amount  claimed  was  due  upon  either  an  express  or 
implied  contract,  yet  the  defendant  was  entitled  to 
have  the  execution  in  evidence  upon  which  to  base  the 
defense  that  the  transfer  of  the  property  from  Gordon 
and  Cory  to  plaintiff  was  fraudulent  and  void  as  to 
creditors.  We  think  the  evidence  of  the  plaintiff  clearly 
shows  that  the  transfer  was  void  as  to  creditors.  (§ 
3440,  Civil  Code.)  The  sheriff  did  not  take  the  prop- 
erty from  the  possession  of  plaintiff;  and  even  if  there 
were  irregularities  in  the  proceedings  for  the  judg- 
ment, such  irregularities  would  not  prevent  the  officer 
from  justifying  under  an  execution  valid  on  its  face. 
There  is  nothing  on  the  face  of  the  execution  to  show 
its  invalidity.  The  rule  is  fully  stated  in  Freeman  on 
Executions,  §  10 1. 

'"The  sheriff  may  limit  his  inquiries  to  an  inspec- 


§  339  SUITS SHERIFFS  AND  CONSTABLES.  348 

tion  of  the  writ.  If  the  writ  is  issued  by  the  proper 
officer,  in  due  form,  and  appears  to  proceed  from  a 
court  competent  to  exercise  jurisdiction  over  the 
subject-matter  of  the  suit ;  to  grant  the  rehef  granted 
and  enforce  it  by  the  writ  issued  ;  and  there  is  nothing 
on  the  face  of  the  writ  showing  a  want  of  jurisdic- 
tion over  the  person  of  the  defendant,  or  showing  the 
writ  to  be  clearly  illegal  from  some  other  cause,  the 
officer  may  safely  proceed.  That  from  some  cause  not 
shown  in  the  writ,  the  judgment  or  writ  was  irregular 
or  void,  will  be  of  no  consequence  to  him.  He  can 
justify  upon  producing  the  writ.  It  is  therefore  imma- 
terial to  him  that  the  judgment  does  not  correspond 
to  the  writ  or  that  there  ever  was  any  such  judgment  in 
existence.' 

"The  same  rule  applies  to  a  court  of  limited  juris- 
diction, if  the  subject-matter  of  the  suit   is  within   that 
jurisdiction,  and  nothing  appears  on  the  face  of  the 
process  to  show  that  the  person  was  not  also  within  it. 
(Savacool  v.  Boughton,  5  Wend.  170.) 

"  2.  The  court  instructed  the  jury  to  render  a  verdict 
for  plaintiff  for  the  property,  and  to  find  the  value  of 
the  property  and  the  damages.  The  jury  found  the 
value  of  the  property  and  the  damages,  and  returned 
a  verdict  for  the  plaintiff  for  such  value  and  damages, 
but  did  not  find  for  the  plaintiff  for  the  property.  This 
was  error.  Under  this  verdict  and  the  judgment 
thereon  the  defendant  could  not  have  elected  to  deliver 
the  property. 

"Judgment  and  order  reversed  and  cause  remanded 
for  a  new  trial." 

A  sheriff  makes  out  a  prima  facie  case  of  justifica- 
tion of  the  seizure  of  property  under  a  writ  of  at- 
tachment, by  the  production  of  the  writ  and  affidavit 


349  SUITS SHERIFFS  AND  CONSTABLES.       §§  34O-342 

on  which  it  was  issued,  notwithstanding  the  affidavit 
was  originally  insufficient,  and  was  amended  subse- 
quent to  the  seizure,  if  the  property  was  in  posses- 
sion of  the  defendant  and  attached  as  his  property. 
(Babe  v.  Coyne,  53  Cal.  261.) 

§  340.  Duress  of  Goods. — The  issue  of  an  at- 
tachment and  a  levy  of  the  same  on  goods,  if  there 
is  a  legal  cause  of  action  existing,  is  not  such  a 
duress  of  goods  as  to  give  a  cause  of  action  for  dam- 
ao-es  in  favor  of  the  one  whose  o^oods  are  seized. 
(Kohler  z'.  Wells,  Fargo  &  Co.,  26  Cal.  606.)  Proof 
of  injury  to  plaintiff's  business  as  a  criterion  of  dam- 
ages is  inadmissible. 

§  341.  Estoppel  of  Owner  of  Attached  Prop- 
erty.— Where  A.,  the  owner  of  property,  represents 
that  certain  property  in  his  possession  belongs  to  B., 
and  that  representation  coming  to  the  ears  of  C,  a 
creditor  of  B.,  who  sues  out  an  attachment  against 
B.,  and  seizes  the  property:  Held,  that  A.  is  estopped 
from  setting  up  a  claim  to  the  property.  (Mitchell  v. 
Reed,  9  Cal.  204.) 

In  so  deciding,  the  court  said:  "If  parties  choose 
to  make  untrue  statements,  by  which  others  are  in- 
jured, they  should  be  estopped  to  unsay  what  they 
have  before  said.  Estoppels,  in  general,  are  odious ; 
but  in  mercantile  and  ordinary  business  transactions, 
where  men  must  trust  to  appearances  and  the  declar- 
ations of  parties,  because  they  have  no  other  means  of 
information  in  such  cases,  the  courts  have  been  in- 
clined to  extend  the  list  of  estoppels." 

§  342.     Receipt  to  Sheriff  as    Estoppel. — One 


§  343  SUITS SHERIFFS  AND  CONSTABLES.  35O 

who,  with  knowledge  of  ah  the  facts  and  cn-cumstances 
surrounding  the  transaction,  gives  to  the  sheriff  an 
accountable  receipt  for  property  levied  upon  as  the 
property  of  another,  is  estopped  from  afterwards  assert- 
ing ownership  in  himself,  unless  at  or  before  the  giv- 
ino-  of  the  receipt  he  made  known  his  claim  to  the 
officer.  (Bleven  z^  Freer,  lo  Cal.  172;  Dresbach  £.-. 
Minnis,  45  Cal.  223.) 

§  343.     Liability  of   Officer  for  Trespass,  and 
Sureties  on   Official   Bond. — Where   a   sheriff  or 
constable  seizes   the  property  of  one  man  under  an 
execution  against  another,  he  is  a  trespasser,  and  lia- 
ble on  his  official  bond.      (Van  Pelt  v.  Litder,  14  Cal. 
194.)     An   action  on   the  official   bond  of  an   officer 
lies  primarily  upon  the  breach  of  the  condition  of  the 
bond,  whether  the  injury  for  which  suit  is  brought  be 
a   trespass  or  not — the  result  of  the  non-feasance  or 
mis-feasance  of  the  officer.     In  the  decision  here  cited, 
the    suit   was    brought   upon    the    official   bond   of  a 
constable,   against  the  officer  and  his  sureties,  to  re- 
cover damages  for  an  illegal  seizure  of  the  property 
of  the  plaindff,  under  an  execution  against  other  par- 
ties.    It  was  contended  that  the  suit  was  improperly 
brought  upon  the  official  bond  of  the  constable  ;    that 
the  suredes  are  not   liable  on  the  bond  on  the  first 
instance,    and    that   the   only  remedy  primarily  is  an 
action    of   trespass    against    the    officer    alone.      The 
condition  of  the  bond  being,  that  the  officer  shall  well 
and  faithfully  discharge  the  duties  of  his  office,  it  was 
held  that  there  could  be  nothing  in  that  point.     The 
bond  is  a  contract  by  which  the  officer  and  his  sureties, 
in  effect,  covenant  and  agree,  not  only  that  the  officer 
will  faithfully  perform  the  dudes  enjoined  by  law,  but 


351  SUITS SHERIFFS  AND  CONSTABLES.  §343 

that  he  will  not,  by  virtue,  or  under  color  of  his 
office,  commit  any  illegal  or  improper  act.  It  is  no 
answer  to  an  action  upon  the  official  bond  of  an 
officer,  that  the  party  complaining  has  not  chosen  to 
pursue  some  other  equally  available  and  proper 
remedy. 

The  law  is  well  settled,  that  a  sheriff  is  answerable 
for  the  wrongful  acts  of  his  deputy,  committed  under 
color  of  his  office,  and  in  the  pretended  discharge  of 
his  duty.  If  the  deputy  levy  an  execution  against  A. 
upon  the  property  of  B.,  the  sheriff  is  liable  ;  and  he 
is  liable  not  only  in  a  private  and  individual  capacity, 
but  in  his  public  and  official  character,  and  upon  his 
official  bond.  This  liability  rests  alone  upon  the 
eround  of  the  official  relation  existing  between  the 
parties,  and  can  be  enforced  only  as  to  such  acts  of 
the  deputy  as  are  connected  with  the  performance  of 
his  official  duty.  He  is  no  more  answerable  for  a 
naked  trespass  committed  by  the  deputy  than  any 
other  person,  but  the  wrongful  acts  of  the  deputy, 
done  under  color  of  process,  are  deemed  official, 
and  for  such  acts  he  is  liable.  This  being  admitted, 
and  its  correctness  seems  never  to  have  been  ques- 
tioned, it  is  difficult  to  perceive  any  satisfactory  rea- 
son why  similar  acts  of  the  sheriff  himself  should  not 
be  held  of  the  same  character,  in  order  to  chargfe 
his  sureties.  Our  statute  makes  no  distinction  be- 
tween the  liability  of  a  sheriff  and  a  constable.  The 
legislature  intended  that  the  officer  and  his  sureties 
should  be  responsible  for  every  abuse  of  his  official 
powers,  and  there  could  not  well  be  a  more  flagrant 
abuse  of  such  powers  than  the  seizing  and  selling  of 
the  property  of  one  person  under  and  by  virtue  of 
an    execution    against   another.     He  does  not  act  in 


§   344  SUITS SHERIFFS  AND  CONSTABLES.  352 

such  a  case  in  a  private  and  individual  capacity,  but 
as  an  officer,  clothed  with  official  authority,  and  pro- 
tected by  the  judgment  of  a  court  and  the  process 
which  he  intends  to  execute.  No  resistance  can  law- 
fully be  made  by  any  person  whose  property  is  thus 
taken.  The  property  itself  may  be  detained-  whether 
legally  taken  or  not,  and  a  summary  mode  is  provided 
for  the  protection  of  the  officer,  to  determine  disputes 
in  reo-ard  to  the  tide.  "  To  hold  that  such  an  act  is  not 
official,"  say  the  court  in  the  case  above  cited,  "at  least 
so  far  as  to  charge  the  sureties,  it  appears  to  us,  would 
be  in  contravention  of  the  spirit  and  intention  of  the 
statute,  and  would  certainly  operate  most  unjustly 
upon  persons  whose  property  may  be  taken  by  an 
officer  who  is  insolvent  and  unable  to  respond  in  dam- 
aees  for  its  value." 

In  a  suit  brought  on  the  official  bond  of  defendant, 
Webster,  who  was  sheriff  of  San  Joaquin  count}^ 
against  Webster  and  his  suredes,  to  recover  damages 
for  the  levy  by  Vv^ebster  on  property  of  one  Pico,  which 
levy  was  made  under  color  of  process,  it  was  held 
(Pico  ^'.  Webster,  14  Cal.  203,)  that,  where  the  surety 
undertakes  that  his  principal  shall  pay  any  judgment 
to  be  rendered,  etc.,  the  judgment  against  the  princi- 
pal is  conclusive  against  the  surety. 

But,  in  the  case  of  official  bonds,  the  sureties  under- 
take in  general  terms  that  the  principal  will  perform 
his  official  dudes  ;  and  a  judgment  against  the  officer, 
in  a  suit  to  which  they  were  not  pardes,  is  not  evidence 
against  them. 

§  344.  Action  for  Trespass. — In  an  acdon  for 
trespass  (Pacheco  v.  Hunsacker,  14  Cal.  120,)  brought 
by  one    Pacheco   against   Hunsacker,  as   sheriff,    for 


JDO 


SUITS SHERIFFS  AND  CONSTABLES.  §  345 


seizing  and  taking  away  certain  grain,  the  property  of 
plaintiff,  the  defendant  admitted  the  seizure,  averring 
that  it  was  done  by  virtue  of  a  writ  of  attachment 
issued  at  the  suit  of  Dutil  v.  Andeque  ;  that  he  sold 
the  undivided  two-thirds  interest  in  the  wheat,  as  perish- 
able property,  for  $495  ;  that  at  the  time  of  the  seizure, 
Andeque  had  a  leviable  interest  in  the  wheat,  and  that 
Dutil  was  a  bona  fide  creditor.  The  wheat  was  in  five 
stacks,  and  was  left  by  the  sheriff  in  charge  of  a  keeper 
until  the  day  of  sale.  At  the  sale,  the  sheriff  announced 
that  he  only  sold  the  undivided  two-thirds  interest  of 
Andeque.  Pacheco  was  present  and  notified  the 
sheriff  that,  if  he  sold,  he,  Pacheco,  would  abandon  his 
one-third  and  claim  the  whole  value  of  the  sheriff.  The 
purchaser  at  the  sale  afterwards  went  on  to  the  land, 
threshed  out  the  whole  of  the  five  stacks,  and  kept  the 
wheat.  The  sheriff  retained  the  $495,  to  abide  the 
event  of  this  suit.  A  few  days  before  the  seizure  by 
the  sheriff,  Andeque  sold  to  Pacheco  these  five  stacks, 
pointing  them  out  specifically,  executed  a  bill  of  sale, 
left  the  ranch,  and  did  not  return. 

The  court  below,  amongr  other  thinofs,  instructed  the 
jury  that  the  plaintiff  was  entitled  to  recover,  if  at  all, 
the  value  of  all  the  grain  taken.  The  jury  found  for 
plaintiff  ^1457.  Judgment  vv^as  rendered  accordingly, 
and  defendant  appealed.  The  Supreme  Court  held 
that  the  delivery  and  change  of  possession  was  suffi- 
cient, and  that  plaintiff  was  entitled  to  the  value  of 
all  the  grain  taken. 

§  345.  Bond  to  Indemnify  Sheriff  for  Unlaw- 
ful Act. — A  bond  given  to  a  sheriff  to  indemnify  him 
for  any  loss  or  damage  he  may  sustain  by  selling  prop- 
erty levied    on  by  him  by  virtue  of  an  execution    in 


§§  34^.  347        SUITS SHERIFFS  AND  CONSTABLES.  354 

violation  of  an  order  enjoining  its  sale,  is  void,  because 
an  unlawful  contract.  (Buffendeau  v.  Brooks,  28  Cal. 
642.)  In  this  case,  the  judgment  had  been  set  aside 
and  a  temporary  injunction  issued.  The  bond  was 
dated  June  i6th,  but  was  not  delivered  to  the  sheriff 
until  June  28th,  the  day  of  the  sale.  The  sheriff  erro- 
neously supposed  that  the  bond  would  indemnify  him 
for  selling,  notwithstanding  the  restraining  order. 

§  346.  Violation  of  Duty  by  Sheriff. — Personal 
property  which  is  exempt  from  forced  sale  on  execution 
is  none  the  less  exempt  because  the  judgment  debtor 
owns  an  undivided  interest  in  it  in  common  with  a 
stranger  to  the  judgment ;  and  where  a  sheriff,  on  ascer- 
taining that  property  which  has  been  attached  is  exempt 
from  execution,  refuses  to  release  it  without  an  under- 
taking, he  exceeds  his  authority  and  violates  his  duty. 
Such  an  undertaking  is  void  for  want  of  consideration, 
and  for  having  been  illegally  exacted  by  the  sheriff 
under  color  of  his  office.  It  is  the  duty  of  the  sheriff 
to  release  exempt  property,  without  an  undertaking. 
(Servanti  v.  Lusk,  43  Cal.  238.) 

§  347.  Agreement  to  Indemnify  Sheriff.  —  An 
agreement  to  indemnify  a  sheriff  for  seizing  property 
under  execution  is  valid,  if  the  parties  are  in  good 
faith  seeking  to  enforce  a  legal  right ;  but  an  agree- 
ment to  indemnify  a  party  for  a  willful  trespass  about 
to  be  committed  is  against  public  policy  and  void.  In 
the  case  of  Stark,  sheriff,  v.  Raney,  18  Cal.  622, 
wherein  the  sheriff  seized  and  sold  a  wai^on  on  exe- 
cution  in  favor  of  Raney,  who  pointed  out  the  wagon, 
requested  the  sheriff  to  seize  it,  and  verbally  agreed  to 
hold  him   harmless,  etc.,  it  was  held,  in  a  suit  by  the 


355  SUITS SHERIFFS  AND  CONSTABLES.  §  348 

sheriff  against  Raney,  for  damages  recovered  against 
the  sheriff,  for  the  seizure,  that  the  agreement  to  in- 
demnify is  vahd  ;  that  it  was  not  a  "special  promise 
to  answer  for  the  debt,  defauh,  or  miscarriage  of  an- 
other," within  the  Statute  of  Frauds — because  the 
sheriff  was  actinor  not  for  himself,  but  as  aeent  of 
Raney,  and  the  promise  was  to  be  responsible  for 
his  acts  as  such  agent.  It  was  held,  further,  that  the 
sheriff  was  entitled  to  recover,  not  simply  the  value 
of  the  property  which  he  had  been  compelled  to  pay, 
but  also  the  costs  incurred  by  him  in  defending  the 
suit  brought  to  recover  such  value  ;  that  his  claim  to 
indemnity  extends  to  the  entire  damages  to  which  he 
had  been  subjected  on  account  of  the  seizure. 

§  348.  Conditions  of  Indemnity  Bond. — If  in  a 
bond  to  indemnify  a  sheriff  for  replevying  property 
claimed  by  a  person  other  than  the  defendant  in 
the  writ,  the  obligors  undertake  to  indemnify  him 
from  any  damage  he  may  sustain  by  reason  of  any 
costs,  suits,  judgments,  and  executions  that  shall 
come  to  be  brought  aofainst  him,  the  sheriff  cannot 
maintain  an  action  on  the  bond  because  a  judgment 
has  been  recovered  against  him,  but  must  first  pay 
the  judgment.  (Lot  v.  Mitchell,  32  Cal.  24.)  In  this 
case  the  obligors  do  not  undertake  anything  except 
that  they  will  indemnify  the  sheriff  from  any  actual 
damage  that  he  may  sustain  by  reason  of  any  costs, 
suits,  judgments,  and  executions  that  shall  come  or 
be  brought  against  him. 

When  a  sheriff  takes  an  indemnity  bond  against  the 
claim  of  a  third  party,  in  attachment  or  execution,  and 
it  is  provided  in  the  bond  that  the  officer  may  retain 
for  a  reasonable   time,   as  additional  security  against 


§  349  SUITS SHERIFFS  AND  CONSTABLES.  2)5^ 

such  claim,  all  moneys  that  may  come  into  his  hands 
by  reason  of  said  attachment  or  any  execution  in  said 
action,  the  term  "reasonable  time "  will  enable  the 
officer  to  retain  such  moneys  until  the  determination 
of  any  suit  that  has  been  brought  against  him  therein 
by  the  claimant.  (Scherr  z>.  Little,  filed  June  28th, 
1882.) 

§  349.  Plaintiff  Bound  by  his  Bond. — In  the 
case  of  Graves  v.  Moore,  58  Cal.  435,  the  plaintiff,  as 
sheriff,  under  an  execution  in  favor  of  the  defendants, 
Moore,  Hunt  &  Co.,  levied  on  certain  personal  prop- 
erty, including  a  billiard  table  ;  but,  before  the  sale, 
Strahle  &  Co.,  and  also  one  Soberanes,  each  claimed 
the  property  pursuant  to  §  689  of  the  Code  of  Civil 
Procedure.  The  sheriff  sent  written  notice  of  the 
claim  made  by  Soberanes,  and  also  (it  was  claimed)  of 
the  claim  of  Strahle  &  Co.,  to  Moore,  Hunt  &  Co.,  who 
delivered  to  the  sheriff  an  indemnity  bond  against  the 
claim  of  vSoberanes,  and  ordered  him  to  sell.  After  the 
sale,  Strahle  &  Co.  sued  the  sheriff  for  the  value  of 
the  property,  which  was  paid.  In  an  action  brought 
by  the  sheriff  to  recover  the  amount  of  the  judgment, 
also  $100  paid  as  counsel  fees,  the  court  found,  among 
other  facts,  that  the  plaintiff  notified  the  defendants  of 
the  claim  of  Strahle  &  Co.,  and  was  thereupon  directed 
to  sell.  It  appears  that  upon  being  served  with  the 
summons  in  the  suit  brought  against  him  by  Strahle  & 
Co.,  the  sheriff  notified  the  attorney  of  Moore,  Hunt 
&  Co.,  who  appeared  in  the  action,  but  afterwards 
abandoned  the  same,  and  notified  the  sheriff  that  they 
would  make  no  further  defense.  The  court  found  that 
the  officer  was  entitled  to  recover,  not  only  the  amount 
of  the  judgment,  but  also  counsel  fees,  because  Moore, 


357  SUITS SHERIFFS  AND  CONSTABLES.        §§  35O,  35  I 

Hunt  &  Co.,  by  their  agreement  of  indemnity,  engaged 
to  save  the  sheriff  from  the  legal  consequences  of  sell- 
ing the  property  of  the  claimant,  and  their  engagement 
applied  not  only  to  the  act  of  selling,  but  to  all  the 
consequences  resulting  to  him  from  that  act.  (Civil 
Code,  §§  2772,  2775.)  Having  been  compelled  to  pay 
by  the  judgment  against  him,  he  has  a  right  to  recover 
not  only  the  amount  of  the  judgment,  but  the  expenses 
attending  the  action  which  he  had  to  defend.  (Duffield 
V.  Scott,  3  T.  R.  374;  Stark  :-.  Raney,  i8  Cal.  622.) 

The  judgment  against  the  sureties  is  conclusive  evi- 
dence of  his  right  to  recover  against  them  on  the  bond 
of  indemnity,  nor  can  they  complain,  as  by  virtue  of 
§  387.  Code  of  Civil  Procedure,  the  sureties  have  the 
rio-ht  to  intervene  in  the  suit  aorainst  the  officer  and 
defend  the  suit  as  a  party  to  the  record. 

§  350-  Judgment  against  Sheriff. — The  provis- 
ion of  the  statute  making  the  judgment,  in  an  action 
against  a  sheriff,  conclusive  evidence  against  his  in- 
demnifier,  where  the  latter  has  been  notified  of  the 
action,  is  founded  upon  the  principle  that  the  action, 
under  such  circumstances,  is  in  substance  against  the 
indemnifier — the  real  party  in  interest — and  that  he 
has  in  that  action  an  opportunity  to  make  any  defense 
that  may  exist.  Where,  therefore,  the  indemnifier 
has  been  notified  of  the  action  against  the  sheriff,  he 
cannot  maintain  a  bill  in  equity  to  set  aside  the  judg- 
ment obtained  therein,  except  under  such  conditions 
as  would  have  enabled  him  to  maintain  it  had  he  been 
the  nominal  as  well  as  real  party  defendant  to  the  first 
action.     (Dutil  v.  Pacheco,  21  Cal.  442.) 

§  351.    An  Estoppel  that  Protects  the  Sheriff. — 


§  35-  SUITS SIIERIFKS  AND  CONSTABLES.  358 

If  a  court  or  referee,  on  proceedings  supplementary 
to  execution,  orders  property  of  the  judgment  debtor 
to  be  delivered  up  to  the  sheriff  to  be  sold  on  the 
execution,  the  judgment  creditor  is  estopped  by  the 
order  from  maintaining  an  action  against  the  sheriff 
for  selling  the  property.  (McCullough  z'.  Clark,  41 
Cal.  304.)  In  this  case  the  judgment  debtor  had  an 
insurance  policy  which  he  claimed  to  be  exempt  from 
execution.  The  court  decided  that  that  particular 
policy  was  not  exempt,  and  that  the  sheriff,  in  seek- 
ing to  apply  it  toward  the  payment  of  the  judgment, 
in  obedience  to  that  order  of  the  court,  was  only  per- 
forming a  duty  enjoined  upon  him  by  law,  and,  there- 
fore, could  not  be  treated  as  a  wrong-doer. 

§  352.  Simple  Trespass. — In  the  case  of  Selden 
V.  Cashman,  20  Cal.  67,  action  for  damages  for  tres- 
pass, for  the  seizure  of  a  stock  of  goods  under  an 
execution  issued  upon  a  void  judgment,  the  court 
held  that  the  fact  of  the  invalidity  of  the  judgment 
was  not  sufficient  to  warrant  the  conclusion  that  the 
seizure  was  malicious.  There  was  nothing  extra- 
ordinary attending  the  seizure,  and  the  course  ordin- 
arily adopted  in  such  cases  seems  to  have  been 
substantially  pursued.  The  seizure  was  undoubtedly 
a  hardship  upon  the  plaintiff,  but  there  was  no  evi- 
dence of  any  wrongful  design  or  willful  misconduct 
tending  to  aggravate  the  offense.  The  case  presented 
was  that  of  a  simple  trespass,  and  the  court  below 
acted  properly  in  refusing  to  allow  exemplary  damages. 

To  maintain  fi-orcr  or  trespass  de  bonis  asportatis, 
evidence  of  an  actual  forcible  dispossession  of  the 
plaintiff  is  not  necessary.  Any  unlawful  interference 
with  the  property,  or  exercise  of  dominion  over  it,  by 


359  SUITS SHERIFFS  AND  CONSTABLES.       §§  353,  354 

which  the  owner  is  damnified,  is  sufficient  to  maintain 
either  action.  It  was  held,  accordingly,  in  Rider  v. 
Edgar,  54  Cal.  127,  in  an  action  by  a  mortgagee  of 
personal  property  against  a  sheriff,  for  taking  the  same 
under  attachments  against  the  mortgagor,  that  a  levy 
upon  a  part  of  the  property  in  the  possession  of  the 
mortgagor,  and  the  appointment  of  a  keeper,  was  a 
taking,  although  the  property  was  not  moved  or  other- 
wise disturbed,  and  though  it  was  released  before  any 
demand  from  the  plaintiff. 

§  353.     Sheriff  Liable  for  Acts  of  Deputy. — In 

an  action  of  trespass  against  a  sheriff,  where  he  is 
declared  against  personally  and  not  as  sheriff,  it  is  com- 
petent to  prove  that  the  defendant  was  sheriff,  and 
that  his  deputy  as  such  committed  the  trespass.  The 
sheriff  is  liable  for  the  acts  of  his  deputy.  In  such  a 
case,  it  is  not  necessary  to  prove  that  the  defendant 
directed  his  deputy  to  seize  the  particular  property  in 
question,  in  order  to  hold  the  defendant  liable.  (Poin- 
sett V.  Taylor,  6  Cal.  78.) 

§  354.  When  Judgments  cannot  be  Set  Off. — A 
sheriff  will  not  be  allowed  to  take  advantage  of  his  own 
wrong,  and  by  an  illegal  act  defeat  the  purpose  of  the 
statute.  In  the  case  of  Beckman  v.  Manlove,  sheriff,  18 
Cal.  389,  plaintiff  recovered  judgment  against  defend- 
ant for  seizing,  as  sheriff,  under  execution,  certain 
exempt  property.  Defendant  then  procured  an  assign- 
ment to  him  of  the  judgment  on  which  the  execution 
issued,  and  moved  the  court  to  set  off  this  latter  judg- 
ment against  the  former  :  Held,  that  the  motion  was 
properly  denied  ;  that  defendant  being  sued  as  a  wrong- 
doer, the  judgment  of  plaintiff  for  the  value  of  the 


§§  355>  356       SUITS SHERIFFS  AND  CONSTABLES.  360 

property  must,  as  between  plaintiff  and  defendant,  be 
regarded  as  standing  in  place  of  the  property  ;  and 
that  if  defendant  were  allowed  in  this  way  to  take 
advantage  of  his  own  wrong,  he  would  practically 
defeat  the  purpose  of  the  Exemption  Law. 

§  355.  Release  of  Sheriff  by  Stipulation. — Where 
an  action  of  replevin  is  brought  to  recover  property  in 
the  possession  of  a  sheriff  under  attachment,  and  the 
parties  stipulate  that  the  property  shall  be  turned 
over  to  a  third  party  to  await  the  final  judgment  in 
the  cause,  the  sheriff  is  released  from  all  liability, 
and  a  judgment  in  form  only  can  be  taken  against 
him.      (Temple  v.  Alexander,  53  Cal.  3.) 

§  356.  Measure  of  Damages  for  Detaining 
Personal  Property. — In  actions  for  taking  and  de- 
taining personal  property,  no  circumstances  of  aggra- 
vation being  shown,  the  measure  of  damages  is  the 
value  of  the  property,  with  interest.  If  circumstances 
of  aegravation  be  shown  in  order  to  increase  the  dam- 
ages,  then  defendant  may  show  all  circumstances  con- 
nected with  his  acts,  and  explanatory  of  his  motives 
and  intentions.  In  such  actions,  the  rule  of  damages 
depends  on  the  presence  or  absence  of  circumstances 
of  aggravation  in  the  trespass,  as  fraud,  malice,  or 
oppression.  In  the  absence  of  such  circumstances, 
the  rule  is  compensation  merely,  and  this  refers  solely 
to  the  injury  done  to  the  property,  and  not  to  col- 
lateral or  consequential  damages  resulting  to  the 
owner.  And  the  measure  of  relief  is  matter  of  law. 
But  where  the  trespass  is  committed  from  wanton  or 
malicious  motives,  or  a  reckless  disregard  of  the 
rights    of  others,    or    under    circumstances    of  great 


o 


6  I  SUITS SHERIFFS  AND  CONSTABLES.  §  35^ 


hardship  and  oppression,  the  rule  of  mere  compensa- 
tion is  not  enforced,  and  the  measure  and  amount  of 
damages  are  matters  for  the  jury  alone,  and  they  may 
award  punitive  or  exemplary  damages. 

The  rule  of  compensation  merely,  as  distinguished 
from  the  rule  of  exemplary  damages,  applies,  even 
though  the  writ,  under  which  the  officer  committed  the 
trespass,  were  void — there  being  no  circumstances  of 
aggravation.     (Dorsey  v.  Manlove,  14  Cal.  553.) 

In  actions  for  the  conversion  of  personal  property, 
plaintiff  is  entided  to  recover  the  value  of  the  prop- 
erty, and,  in  addition  thereto,  vindictive  damages,  if 
the  injury  was  wanton  or  malicious  ;  and  the  value 
must  be  the  wholesale  market  value. 

In  an  action  against  a  sheriff  for  wrongfully  seizing 
and  selling  property,  under  an  execution,  and  where 
there  was  no  wantonness  or  oppression  on  the  part  of 
such  officer  in  the  seizure,  the  measure  of  damages  is 
the  value  of  the  property  at  the  time  it  was  seized,  and 
leo-al  interest  on  such  amount  from  the  time  of  seizure 
up  to  the  time  of  the  rendition  of  the  verdict.  (Phelps 
2J.  Owens,  1 1  Cal.  25.) 

The  rule  giving  vindictive  or  exemplary  damages  in 
cases  of  malicious  trespass,  applies  as  well  to  officers  of 
the  law,  acting  under  color  of  process,  as  to  private 
persons.      (Nightingale  57.  Scannell,  18  Cal.  315.) 

In  suit  against  a  sheriff  and  the  plaintiff  in  a  judg- 
ment for  a  wrongful  seizure  of  property  on  an  execu- 
tion upon  such  judgment,  the  sheriff,  who  acted  without 
improper  motives,  cannot  be  made  liable  in  vindictive 
or  exemplary  damages  on  account  of  the  malicious 
motives  of  the  plaintiff  in  the  writ.  The  motives  of 
plaintiff  cannot  be  given  in  evidence  in  aggravation  of 
damaofes  ao^ainst  the  sheriff.     Id. 


§§  357'  35^       SUITS SIIKRIFFS  AND  CONSTABLES.  362 

In  an  action  to  recover  the  possession  of  personal 
property,  with  damages  for  its  detention,  the  judgment 
may  be  for  more  than  the  value  as  alleged  in  the  com- 
plaint, if  it  be  within  the  ad  dammim  of  the  writ.  The 
value  of  the  property  is  only  one  predicate  of  the 
recovery.  (Coghill  v.  Boring,  sheriff,  15  Cal.  213.) 
The  rule  is,  where  the  property  converted  has  a  fixed 
value,  the  measure  of  damages  is  that  value,  with  legal 
interest  from  the  time  of  conversion.  When  the  value 
is  fluctuating,  the  plaintiff  may  recover  the  highest 
market  value  at  the  time  of  the  conversion,  or  at  any 
time  afterwards.     (Hamer  v.  Hathaway,  y^^  Cal.  117.) 

§  357.  Offices  of  Sheriff  and  Tax  Collector 
Separate. — The  offices  of  sheriff  and  tax  collector  are 
as  distinct  as  though  filled  by  different  persons.  The 
duties  and  obligations  of  the  one  are  entirely  independ- 
ent of  the  duties  and  obligations  of  the  other.  They 
are  not  so  blended  that  the  bond  executed  for  the 
faithful  performance  of  the  duties  appertaining  to  the 
one  would  embrace,  in  the  absence  of  the  statute,  the 
obligations  belonging  to  the  other.  (People  v,  Edwards, 
9  Cal.  286.) 

§  358.  Actions  upon  Undertakings. — Instances 
of  disastrous  results  from  loosely  drawn  complaints 
in  actions  to  recover  upon  undertakings  given  to 
prevent  the  levy  and  for  the  release  of  attachments, 
have  so  frequently  met  the  eye  of  the  writer  in  look- 
ing through  the  California  Reports  for  decisions  re- 
lating to  the  duties  of  sheriffs  and  constables  and 
pertaining  to  legal  process,  that  a  word  or  two  upon 
that  subject  is  deemed  not  out  of  place  in  this  work. 
If  the  complaint  does  not  aver  either  that  the  giving 


6^  SUITS SHERIFFS  AND  CONSTABLES.  §  358 


J'-'v? 


of  the  undertaking  sued  on  prevented  the  levy  of 
the  attachment,  or  that  the  property  was  released 
upon  the  giving  of  the  undertaking,  it  fails  to  aver 
the  very  gravamen  and  essential  gist  of  the  cause  of 
action  itself.  In  an  action  upon  an  undertaking  given 
to  prevent  the  levy  of  an  attachment,  in  the  case  of 
Coburn  v.  Pearson,  57  Cal.  306,  the  complaint  stated 
that  the  sheriff  did  proceed  to  levy  upon  and  attach 
certain  personal  property  ;  and  that  before  the  com- 
pletion of  said  levy,  the  defendants,  for  the  purpose 
of  preventing  the  levy  or  the  completion  thereof, 
tendered  the  sheriff  the  undertaking  required  by  law, 
etc.,  which  undertaking  was  duly  taken  and  accepted 
by  the  sheriff.  It  was  held  that  the  complaint  was  de- 
fective in  not  stating  that  the  sheriff  did  not  complete 
the  levy,  or  that  he  proceeded  no  further  therewith. 
In  this  case  the  court  said : 

"Assuming  that  the  words  'did  proceed  to  levy 
upon,'  etc.,  do  not  necessarily  imply  that  the  sheriff 
took  the  property  into  his  possession  (and  any  acts 
clearly  Indicating  his  purpose  to  subject  it  to  his 
control,  would  give  the  sheriff  the  legal  possession 
as  against  the  defendant  in  attachment),  the  complaint 
contains  no  averment  that  the  sheriff  did  not  'com- 
plete' the  levy,  or  that  he  proceeded  no  further 
therewith.  This  would  seem  to  be  necessary.  It  is 
urged  that  the  averment  that  the  sheriff  duly  took 
and  accepted  the  undertaking  is  sufficient,  inasmuch 
as  that  it  will  be  presumed  that  the  sheriff  did  his 
duty,  and  that  he  would  not  have  taken  the  under- 
taking and  also  the  property.  But  such  presump- 
tions are  applied,  in  proper  cases,  as  a  rule  of  evi- 
dence, not  of  pleading.  A  party  must  allege  the 
material    ultimate    facts,    even    although    some   other 


§  35^  SUITS SHERIFFS  AND  CONSTABLES.  364 

fact,  if  proven,  might  create  a  presumption  of  the 
existence  of  one  of  the  facts  alleged.  Besides, 
here,  there  can  be  no  doubt  that  the  burden  was 
cast  on  plaintiff  at  the  trial  to  prove  the  cessation 
of  proceedings  towards  a  levy,  or  a  return  of  the 
property  to  the  extent  to  which  a  caption  had  been 
effected.  Otherwise,  the  consideration  of  the  under- 
taking (not  under  seal)  would  not  be  proven.  In 
Palmer  v.  Melvin,  6  Cal.  651,  it  was  held  that  a  com- 
plaint upon  a  bond  given  to  release  property  from  at- 
tachment was  defective,  because  it  did  not  aver  that 
the  property  was  released  upon  the  delivery  of  the 
bond."  The  court  said:  "It  is  necessary  to  allege 
the  consideration  for  the  undertaking,  and  a  mere 
reference  to  the  condition  of  the  bond  is  insufficient." 
The  same  rule  is  laid  down  in  Williamson  v.  Blattan, 
9  Cal.  500.  where  the  court  says,  further,  "  that  the 
failure  to  allege  the  release  of  the  property  may  be 
taken  advantage  of  by  _^'^;2^rrt;//^(?7;2?/rr <?;-."  In  Nicker- 
son  V.  Chatterton,  7  Cal.  568,  it  was  held,  that  in  an 
action  against  the  sureties  on  a  replevin  bond,  it  is 
necessary  to  allege  that  the  property  was  delivered  to 
the  party  for  whom  the  bond  was  given  ;  in  Los  An- 
geles V.  Babcock,  45  Cal.  252,  that  in  a  suit  on  a 
bail  bond  the  complaint  must  allege  that  the  person 
bailed  was  released  from  custody  ;  in  Jenner  v.  Stroh, 
52  Cal.  504,  that  when  action  was  commenced  on  an 
undertaking  given  to  procure  the  vacation  of  a  default 
pulonient.  the  complaint  should  have  averred  that  the 
judgment  was  set  aside.  In  such  cases,  the  considera- 
tion for  which  the  undertaking  is  executed  and  deliv- 
ered must  be  alleged  and  proved. 


§359 
§359 
§  36o 
§361 
§  362 
§363 
§364 
§365 
§366 

§367 
§368 

§369 
§370' 
§371 


CHAPTER    XVI. 


SHERIFFS     FEES. 

Fees  Allowed  by  Court. 

Attorney  cannot  Bind  Client  for  Certain  Fees. 

Commissions  on  Execution. 

Care  of  Court  House. 

Prepayment  of  Fees. 

Complaint  in  Action  for  Fees. 

Fees  in  Change  of  Venue. 

In  Habeas  Corpus. 

Fees  for  Copies. 

Official  Duty  of  Sheriffs. 

Illegal  Fees. 

Separate  Charges  for  Separate  Acts. 

Mileage  for  Conveying  Prisoners. 

Officer  may  have  Execution  for  Fees. 


§  359.  Fees  Allowed  by  Court. — Every  officer  is 
presumed  to  be  familiar  with  the  fee  bill  of  his  own 
county.  The  fees  chargeable  are  fixed  by  statute, 
with  the  exception  of  such  as  accrue  in  the  taking  and 
keeping  possession  and  preserving  property  under 
attachment,  or  execution,  or  other  process.  The  pro- 
vision of  the  statute  allowing  the  officer  in  those 
expenditures  "such  sum  as  the  court  shall  order," 
provided  that  no  more  than  $3  per  diem  shall  be 
allowed  to  a  keeper  (statutes  1869-70,  p.  158,)  should 
be  borne  in  mind  in  all  cases  where  expenses  of  this 


§360  SIIKRIIFS'    FEES.  366 

kind  are  incurred.  The  property  must  be  safely  kept, 
and  the  officer  will  not  be  refused  reasonable  compen- 
sation therefor.  But  to  enable  him  to  collect  such 
expenses,  he  must  comply  with  the ,  requirements  of 
the  law  which  allows  him  such  reimbursement.  In  the 
case  of  Bower  v.  Rankin,  on  appeal  to  the  Supreme 
Court,  in  which  the  opinion  was  filed  July  27,  1882, 
the  cause  was  remanded  with  directions  to  the  court 
below  to  enter  a  judgment  for  plaintiff  for  the  principal 
sum  sued  for  and  ;^26. 10  sheriff's  costs — refusing  to 
allow  the  officer's  costs  for  keeping  the  property, 
amounting  to  $1644,  for  the  reason  that  no  allowance 
had  been  made  by  the  court  to  the  sheriff  "for  his 
trouble  and  expense  in  taking  and  keeping  possession 
of  and  preserving  the  property"  under  the  attach- 
ment. 

An  attorney  has  no  authority  under  the  law  to  bind 
his  client  for  the  payment  of  keeper's  fees.  A  decision 
of  the  Supreme  Court  to  this  effect  will  be  found  in  the 
chapter  relating  to  Attachments  of  Personal  Property. 

In  the  case  of  Ceil  v.  Stevens,  48  Cal,  590,  the  court 
held  that  a  sheriff  is  not  entitled  to  keeper's  fees,  or 
the  expense  of  feeding  stock  under  attachment,  unless 
the  court  from  which  the  writ  issues  certifies  that  the 
charges  are  just  and  reasonable. 

§  360.  Sheriffs'  Commissions  must  be  Paid, 
whether  Sale  is  made  or  not. — If  an  execution  is 
placed  in  the  sheriff's  hands,  and  he  advertises  prop- 
erty for  sale,  and  the  judgment  debtor  pays  the  full 
amount  of  the  judgment  to  the  judgment  creditor 
before  sale,  he  cannot  deprive  the  sheriff  of  his  fees, 
but  is  liable  to  him  for  the  fees  allowed  in  case  of  a 
sale.       (Morse  v.   Gibbons,   43   Cal.   2)11^     ^^^  this 


'^d']  sheriffs'  fees.  §§  361-363 

compensation  attaches  the  moment  any  act  is  done 
under  the  execution  or  order  by  the  sheriff. 

§  361.  Care  of  Court  House. — A  sheriff  cannot 
maintain  an  action  against  a  county  for  compensation 
for  "taking  care  of  the  court  house,  and  keeping  and 
guarding  the  jail  of  the  county  during  his  incumbency 
of  the  office  of  sheriff"  The  law  fixes  his  compensa- 
tion for  the  performance  of  such  official  duty.  (Stock- 
ton V.  Shasta  Co.,  11  Cal.  114.) 

§362.      Prepayment   of   Officers'    Fees. — The 

statute  which  declares  that  "any  officer  may  refuse  to 
perform  any  services  in  a  civil  action  or  proceeding, 
until  the  fee  for  such  service  is  paid,"  is  not  to  be 
construed  as  prohibiting  the  officer  from  performing 
the  service  without  prepayment  of  fees,  but  as  per- 
missive merely,  leaving  the  alternatives  of  cash  in 
advance  or  credit  to  his  own  election  ;  but  if,  when 
services  are  demanded  of  an  officer  in  a  civil  case,  he 
fails  to  demand  his  fees  in  advance,  his  obligation  to 
perform  the  duty  required  is  the  same  as  it  would  be 
if  the  fees  were  prepaid  or  tendered  in  advance.  (Lick 
V.  Madden,  25  Cal.  203.) 


v3^ 


;63.      Complaint  in   Action  for   Fees.  —  In  a 

complaint  in  an  action  brought  by  a  sheriff  for  official 
services  in  levying  an  execution,  it  is  not  necessary  to 
aver  the  value  of  the  services  rendered,  as  the  law 
fixes  their  value.  In  such  complaint  it  is  not  necessary 
to  allege  a  demand.  An  allegation  of  a  special  re- 
quest by  the  defendant,  that  the  plaintiff  should  perform 
the  services,  is  sufficient ;  nor  is  it  necessary  to  aver 
that  the  sums  due  the  plaintiff  were  not  collected  by 


§§  364.  3^5  sheriffs'  fees.  368 

the  sheriff  by  a  sale  of  the  property  levied  on.     (Lane 
V.  McElhany,  49  Cal.  421.) 

In  an  action  by  a  sheriff,  to  recover  for  his  services 
in  keeping  property  levied  on  by  virtue  of  an  execu- 
tion, the  complaint  is  insufficient  which  neither  avers 
what  the  services  were  reasonably  worth,  nor  that  the 
court,  from  which  the  execution  issued,  had  certified 
that  the  amount  was  just  and  reasonable,  and  such 
certificate  is  the  proper  evidence  of  the  value  of  the 
services.     Id. 

In  the  case  of  Lane  v.  McElhany,  49  Cal.  424,  the 
court  remanded  the  cause  with  directions  to  the  court 
below  to  modify  the  judgment,  so  that  the  recovery  of 
the  plaintiff  should  be  for  the  sum  of  $24  only,  striking 
out  keeper's  fees  amoundng  to  $565,  because  plaintiff 
had  neglected  to  aver  in  the  complaint  what  the 
services  were  reasonably  worth,  and  there  was  no 
certificate  of  the  court  fixing  an  allowance  for  keeper's 
fees. 

§  364.  Sheriffs'  Fees  in  Change  of  Venue.— 
Under  the  Act  of  1851,  concerning  the  costs  of  crim- 
inal acdons,  if  a  case  is  removed  from  the  county 
where  the  indictment  was  found,  for  trial  in  another 
county,  the  county  where  the  indictment  was  found 
is  liable  for  the  fees  of  the  sheriff  of  the  county  to 
which  the  cause  was  removed.  The  above  Act  is 
still  in  force  thus  far,  and  was  not  repealed  by  the 
Penal  Code. 

§  365.  No  Charge  for  Habeas  Corpus. — An 
officer  cannot  charge  fees  for  serving  a  writ  of 
habeas  corpus.  No  fees  or  compensadon  of  any 
kind  must  be  received  by  an  officer   for  duties  per- 


369  sheriffs'  fees.  §§  366-368 

formed  or  services  rendered  in  proceedings  on  habeas 
corpus.     (See  §  4333,  Political  Code.) 

§  366.     Sheriff  must  Charge  Fees  for  Copies. — 

Under  the  Act  of  1857,  "Regulating  Fees  of  Office 
in  Certain  Counties,"  the  sheriff  may  charge  fees  for 
copies  of  the  summons  and  injunction  served  by  him 
in  a  suit,  though  the  copies  were  prepared  and 
printed  by  the  plaintiff,  and  certified  by  the  clerk  at 
the  plaintiff's  request ;  but  the  sheriff  must  look  for 
his  fees  to  plaintiff,  at  whose  request  the  copies  were 
served,  and  cannot  sue  the  clerk  for  money  had  and 
received — although  plaintiff  had  paid  the  clerk  for 
such  copies — unless  the  money  was  delivered  to  him 
to  be  paid  to  the  sheriff.  There  is  no  necessity  for 
plaintiff  to  obtain  copies  of  summons  and  injunction 
from  the  clerk;  so  held  in  Edmondson  z>.  Mason,  16 
Cal.  ^iSy.  The  officer  cannot  be  deprived  of  his  legal 
fees,  because  the  party  for  greater  dispatch,  or  any  other 
cause,  saw  fit  to  prepare  the  copies  himself,  or  have 
them  prepared  elsewhere.  Where  the  sheriff's  office 
is  salaried,  he  must  collect  all  fees  due  the  county. 

§  367.  Official  Duty  of  Sheriffs. — The  duty  im- 
posed by  the  statute  on  sheriffs  to  take  prisoners  to 
the  State  prison,  and  insane  persons  to  the  insane 
asylum,  is  an  official  duty,  and  none  the  less  so  be- 
cause some  portion  of  it  must  be  performed  without 
the  limits  of  the  county.  (Adams  z'.  The  City  and 
County  of.  San  Francisco,  50  Cal.  117.) 


O'' 


^68.     Charging  Illegal  Fees. — Before  an  officer 
can  be  removed  from  office  and  fined   under  the  pro- 
visions of  §  772  of  the  Penal  Code,  for  charging  and 
24 


§§   369.  370  SIIKRIIFS'    FKKS.  370 

receiving  illegal  fees,  the  court  must  find  that  such 
fees  were  knowingly,  willfully,  or  corruptly  taken. 
(Triplett  v.  Munter,  50  Cal.  644.)  "The  provision  re- 
ferred to"  say  the  court,  "is  highly  penal  in  its  nature  ; 
and  though  the  statute  does  not  in  ternis  require  that 
the  wrongful  act  must  have  been  knowingly  and  cor- 
ruptly done,  we  are  satisfied  that  it  was  not  the  inten- 
tion of  the  legislature  to  visit  with  this  severe  penalty 
an  act  performed  by  an  officer  in  perfect  good  faith, 
and  under  an  honest  conviction  that  he  was  acting 
strictly  within  the  line  of  his  duty." 

§  369.  Separate  Charges  for  Separate  Acts. — 
The  levy  of  an  attachment  upon  each  separate  piece  of 
real  estate  constitutes  an  independent  levy  on  prop- 
erty. In  Young  z>.  Miller,  opinion  filed  April  2,  1883, 
the  court  helci  that  there  were  three  distinct  levies,  for 
each  of  which  the  sheriff  was  entitled  to  the  fees  allowed 
"  for  levying  an  attachment  on  property." 

§370.  Mileage  for  Conveying  Prisoners. — 
When  an  officer  conveys  a  number  of  prisoners  before 
a  magistrate  or  to  prison,  he  is  entitled,  under  the 
Statute  of  1869-70,  to  charge  for  mileage  for  each 
prisoner  so  conveyed.  In  the  case  of  Sherman  2j. 
County  of  Santa  Barbara.  59  Cal,  483,  the  sheriff 
charged,  and  the  court  below  held  he  was  entitled  to 
receive,  $31.50  for  taking  each  of  five  prisoners  from 
the  same  magistrate  to  the  county  jail — a  distance  of 
one  hundred  and  five  miles  ;  that  under  the  provisions 
of  the  Act  referred  to,  the  plaintiff  was  entitled  to 
charge  mileage  for  each  service  in  all  cases,  except 
those  specified  in  the  proviso,  viz.  :  those  of  jurors  and 
witnesses.     The  court  said  : 


371  SHERIFFS    FEES.  |  2>7^ 

"The  only  matter  in  dispute  in  this  case  is  as  to  the 
construction  of  a  clause  of  the  Act  '  to  Regulate  Fees 
of  Office,' etc.  (Statute  1869-70,  148.)  The  sheriff  is 
thereby  allowed  to  charge  :  '  For  every  mile  neces- 
sarily traveled,  in  going  only,  in  executing  any  warrant 
of  arrest,  subpoena,  or  venire,  bringing  up  a  prisoner 
on  habeas  corpus,  taking  prisoners  before  a  magistrate 
or  to  prison,  or  for  mileage  in  any  criminal  case  or 
proceeding  ;  provided,  that  in  serving  a  subpoena  or 
venire,  where  two  or  more  jurors  or  witnesses  live  in  the 
same  direction,  but  one  mileagfe  shall  be  charged, 
thirty  cents.'  The  sheriff  charged,  and  the  court 
below  held  he  was  entitled  to  receive,  ^31.50  for  taking 
each  of  five  prisoners  from  the  same  magistrate  to  the 
county  jail — a  distance  of  one  hundred  and  five  miles." 

"A  proviso,"  says  Dwarris,  "is  something  engrafted 
upon  a  preceding  enactment,  for  the  purpose  of  taking 
special  cases  out  of  the  general  enactment,  and  pro- 
viding specially  for  them."  The  term,  from  its  origin, 
suggests  the  employment  of  previsioii ;  as  if  the 
legislature  had  declared  'Took  out  for" — see  that  the 
general  words  of  the  enacting  clause  shall  not  have  a 
particular  effect.  Hence,  "on  condition  that ;"  and 
a  proviso  implies  that  the  general  clause  shall  have  no 
effect,  except  upon  condition  that  the  proviso  be  also 
given  effect.  There  is  a  technical  rule  of  pleading 
which  distinguishes  between  provisos  and  exceptions  in 
the  purview  or  enacting  clause  of  an  Act.  But  a 
proviso,  like  that  contained  in  the  statute  we  are 
considering,  as  broadly  separates  the  service  of  sub- 
poenas and  venires  from  the  duties  mentioned  in  the 
enacting  clause,  as  if  the  exceptions  were  inserted  in 
the  purview.  It  lays  down  a  special  rule  as  to  them, 
for  the  very  purpose  of  limiting  the  charge  to  a  single 


§  3/0  sheriffs'  fees.  372 

mileage,  and  because,  except  for  the  proviso,  the 
sheriff,  under  the  rule  of  the  enacting  clause,  would 
be  entitled  to  charge  for  each  witness  and  juryman. 
Thus  the  principle  of  the  maxim,  '' expressio  unms'' 
etc.,  applies.     Judgment  affirmed. 

A  sheriff  or  constable,  under  the  statute  of  1870 
(and  there  has  been  no  change  or  modification  of  the 
law  since,  up  to  this  writing,  1884,  in  this  respect),  for 
executing  a  warrant  of  arrest,  is  entitled  to  mileage, 
both  for  the  distance  traveled  in  going  to  make  the 
arrest,  and  for  that  traveled  from  the  place  of  arrest 
to  the  magistrate.  They  are  also  entided  to  mileage 
for  distance  traveled  outside  the  county  in  making  an 
arrest,  and  in  taking  the  prisoner  toward  a  magistrate. 
These  propositions  were  settled  in  the  case  of  Thomas 
Cunningham,  sheriff  of  San  Joaquin  County  v.  The 
County  of  San  Joaquin,  49  Cal.  323.  The  plaintiff 
was  sheriff  of  San  Joaquin  county,  and,  after  March 
6th,  1872,  executed  several  warrants  for  the  arrest  of 
persons  charged  with  crime.  He  presented  for  allow- 
ance to  the  Board  of  Supervisors,  an  account  for  these 
services,  in  which  he  charged  mileage  not  only  for  the 
distance  traveled  in  eoinof  to  make  the  arrest,  but  for 
that  traveled  in  conveying  the  prisoner  from  the  place 
of  arrest  to  the  mac^^istrate  who  issued  the  warrant. 
The  Board  rejected  that  part  of  the  account  which 
was  for  mileage  in  taking  prisoners  from  the  place  of 
arrest  to  the  magistrate. 

One  Langmaid  was  a  constable  in  said  county,  and 
as  such,  received  a  warrant  of  arrest,  and  to  execute 
the  same,  traveled  a  number  of  miles  outside  of  San 
Joaquin  county,  and  in  Tuolumne  county.  He  traveled 
in  Tuolumne  county  five  miles  in  going  to  make  the 


373  sheriffs'  fees.  ^  zy^ 

arrest,  and  five  miles  in  returning.  The  Board  of 
Supervisors  disallowed  that  part  of  Langmaid  's  account 
which  was  for  travel  outside  San  Joaquin  county,  and 
for  travel  in  San  Joaquin  county  in  taking  the  prisoner 
from  the  place  of  arrest  to  the  magistrate.  He  then 
assigned  his  demand  to  the  plaintiff,  who  commenced 
this  action  in  the  District  Court  to  recover  the  demands. 
The  court  below  held  that  the  sheriff  was  not  entitled 
to  mileage  for  taking  a  prisoner  from  the  place  of 
arrest  to  the  magistrate,  or  to  prison,  and  that  the 
constable  was  not  entitled  to  mileage  outside  the 
county,  either  in  going  or  returning,  and  was  not 
entitled  to  mileage  for  taking  a  prisoner  from  the  place 
of  arrest  to  prison,  or  to  the  magistrate,  and  rendered 
a  judgment  accordingly.     On  appeal,  the  court  said: 

"The  'executing  a  warrant  of  arrest'  and  'the 
taking  a  prisoner  before  a  magistrate  '  are  mentioned 
in  the  statute  as  separate  and  distinct  acts.  The  words 
'in  going  only,'  which  immediately  precede  the  words 
'  in  executing  any  warrant  of  arrest,'  cannot  be  held 
to  apply  to  the  taking  of  a  prisoner  before  the  magis- 
trate, except  as  applicable  to  the  distance  traveled  from 
the  place  of  arrest  to  the  magistrate,  and  the  officer 
making  the  arrest  was  entitled  to  his  mileage  for  that 
distance.  The  officer  was  entitled  to  his  mileage  (out- 
side of  San  Joaquin  county)  in  going  to  make  an  arrest 
and  in  taking  a  prisoner  toward  the  magistrate.  Judg- 
ment reversed.  The  District  Court  will  enter  a  judg- 
ment in  accordance  with  the  foregoing." 

§  371.     Officer  may  have  Execution  for  Fees. 

§  38  of  an  Act  to  Regulate  Fees,  etc.,  approved  March 
5,    1870,  provides  that  if  any  clerk,  sheriff,  justice  of 


§  ^^ji  sheriffs'  fees.  374 

the  peace,  or  constable,  shall  not  have  received  any 
fees  due  to  him  for  services  rendered  in  any  suit  or 
proceeding,  he  may  have  execution  therefor,  in  his 
own  name,  against  the  party  by  whom  they  are  due, 
to  be  issued  from  the  court  in  which  the  action  is 
pending. 


CHAPTER  XVII. 


DUTIES    OF    SHERIFFS    AND    CONSTABLES. 

§  372.  The  Office  of  Sheriff. 

§  372.  Serving  Subpoena  and  Witness  Fees. 

§  373.  Suppression  of  Riots. 

§  374.  Liability  on  Unfinished  Process. 

§  375-  When  Officer  may  Hold  Over. 

§  376.  The  Fee  Book. 

§  377-  Prepayment  of  Fees. 

§  378.  Deputy  Constables. 

§  379.  Officer  cannot  Act  as  Attorney. 

§  380.  Dereliction  a  Misdemeanor. 

§  381.  Gratuities  Prohibited. 

§  382.  Penalty  for  Receiving  Illegal  Fees. 

§  383.  Making  Contracts  and  Buying  Claims. 

§  384.  Duties  of  Sheriffs  and  Constables  under  the  Act  of  1883. 

I  385.  Sheriff  to  Provide  Court-rooms,  etc. 

§  386.  Void  Confiscations. 

§  387.  Sheriff  to  give  Dead  Bodies  to  Physicians. 

I  388.  Aid  to  Wrecked  Vessels. 

§  389.  Sheriff  as  Auctioneer. 

§  390.  Militia  Exemptions  from  Arrest. 

§  391.  Process  of  Court-martial. 

§  392.  Intruders  on  Public  Lands. 

§  393.  Computing  Time. 

§  394.  Holidays,  and  when  Act  falls  on  Holiday. 

§  395.  Trespass  by  Deputy. 

§  396.  Arrests  for  Fraud  and  Torts. 

§  397.  When  Prisoner  may  not  be  Hand-cuffed. 

§  398.  Sheriff's  Notice  to  Sureties. 

§  399.  Arrest  without  Warrant. 


§    'ii']2  DITTF.S  OK  SH  I.RI  !•  KS  AND  CONSTABLES.  376 

§  400.  Officer  making  Arrest  may  Summon  Aid. 

§  401.  When  Warrant  must  be  Shown. 

§  402.  When  Arrest  may  be  at  Night. 

§  403.  When  Arrest  cannot  be  made  at  Night. 

§  404.  Night-time  Defined. 

§  405.  How  Arrest  is  Made. 

§  406.  When  Force  may  be  Used. 

§  407.  When  Doors  may  be  Broken. 

§  40H.  Taking  Weapons  from  Prisoners. 

§  409.  Name  of  Defendant  in  Warrant. 

§  410.  How  Warrant  Executed  in  another  County. 

§411.  Taking  Prisoner  before  Magistrate. 

§  412.  Proceedings  before  the  Magistrate. 

§  413.  Offense  Triable  in  another  County. 

§  414.  Retaking  After  Escape. 

§  415.  Prisoner  Entitled  to  Counsel. 

^5  416.  Liability  for  Delay. 

§  417.  Rescuing  Prisoners. 

§  418.  Escapes  from  Jail. 

§  419.  Carrying  Articles  to  Prisoners. 

§  420.  Refusing  to  Receive  Prisoners. 

§  421.  Making  Arrests,  etc.,  without  Authority. 

§  422.  Assaults  by  Officers. 

§  423.  Refusing  to  Aid  Officers. 

§  424.  Prisoners  Brought  from  other  Counties  as  Witnesses. 

§  425.  Food  and  Lodging  for  Juries. 

§  426.  Inhumanity  to  Prisoners. 

§  427.  Gambling. 

§  428.  Injuring  Jails. 

§  429.  Removal  from  Office. 

§  430.  Jurisdiction  of  Offenses. 

§  431.  Service  of  Bench  Warrant. 

§  372.     The  Office  of  the   Sheriff.— The  sheriff 

must  have  his  office  and  residence  at  the  county  seat, 
and  must  keep  his  office  open  for  the  transaction  of 
business  from  nine  o'clock  a.  m.  till  five  o'clock  p.  m. 

every  day  in  the  year,  except  holidays  ;  except  in  San 
Francisco,  where  the  office  of  the  sherifT  must  be  kept 


2^^]^]  DUTIES  f)F  SIIKRIKFS  AM)  (.'(JNSTAIJLFS.  §   372 

Open  from  nine  o'clock  a,  m.  till  four  o'clock  p.  m.  The 
sheriff  and  his  deputies  may  administer  oaths.  He 
shall  in  no  case  absent  himself  from  the  State  for  a 
period  of  more  than  sixty  days,  and  for  no  period  with- 
out the  consent  of  the  Board  of  Supervisors.  The 
authority  of  the  sheriff  to  execute  all  final  process  in 
his  hands  after  the  expiration  of  his  term,  is  taken  from 
him  by  the  Act  of  March  14,  1883,  ^^^  the  establish- 
ment of  a  uniform  system  of  county  and  township 
governments,  which  provides  that  "When  any  process 
remains  with  the  sheriff  unexecuted,  in  whole  or  in 
part  at  the  time  of  his  death,  resignation  of  office,  or 
at  the  expiration  of  his  term  of  office,  said  process 
shall  be  executed  by  his  successor  or  successors  in 
office  ;  and  when  the  sheriff  sells  real  estate  under  and 
by  virtue  of  an  execution  or  order  of  court,  he,  or  his 
successors  in  office,  shall  execute  and  deliver  to  the 
purchaser,  or  purchasers,  all  such  deeds  and  convey- 
ances as  are  required  by  law  and  necessary  for  the 
purpose,  and  such  deeds  and  conveyances  shall  be  as 
valid  in  law  as  if  they  had  been  executed  by  the  sheriff 
who  made  the  sale."  He  may  appoint  an  under  sheriff 
and  as  many  deputies  as  he  may  deem  necessary,  and, 
under  the  Act  of  1883,  pay  them  whatever  salary  he 
and  they  may  agree  upon,  but  their  services  shall  not 
be  a  charge  against  the  county  from  the  time  said  Act 
goes  into  operation.  Strictly  speaking,  there  can  be 
no  vacancy  in  the  office  of  sheriff,  caused  by  the  death, 
removal  or  resignation  of  the  incumbent ;  for  upon  the 
happening  of  such  an  event,  the  coroner,  by  operation 
of  law,  becomes  sheriff.  (People  v.  Phceins,  6  Cal. 
99.)  But  the  coroner  only  holds  the  office  of  sheriff 
ex-officio  until  the  appointment  of  a  new  sheriff'  by  the 
Board    of  Supervisors.       The    sheriff  must   summon 


§  Z72>  DUTIES  OF  SHERIFFS  AND  CONSTABLES,  378 

grand  and  trial  jurors  of  his  county,  witnesses  for 
criminal  and  civil  cases,  when  called  upon  to  do  so,  make 
arrests  for  all  violations  of  law,  convey  prisoners  to 
state  prison,  and  insane  persons  to  the  asylum  for  the 
insane,  provide  food  and  necessary  clothing  and  bed- 
ding for  prisoners  in  the  county  jail,  attend  upon  the 
grand  jury  when  in  session  ;  and  serve  all  processes 
brought  to  him  regular  on  their  face.  The  public 
records  and  other  matters  in  his  office  are  at  all  times, 
during  office  hours,  open  to  the  inspection  of  any  citizen 
of  this  State. 

Subpoena  and  Witness  Fees. — The  subpcena  in 
civil  cases  may  be  served  by  any  person.  The  service 
is  made  by  showing  the  original  and  delivering  a  copy^ 
or  a  ticket  containing  its  substance,  to  the  witness  per- 
sonally, giving  or  offering  to  him  at  the  same  time,  if 
demanded  by  him,  the  fees  to  which  he  is  entitled  for 
travel  and  one  clay's  attendance.  Witness  fees  are  ^2 
per  day  and  twenty  cents  per  mile. 

§  373.  Suppression  of  Riots. — When  a  sheriff 
or  other  public  officer  authorized  to  execute  process, 
finds,  or  has  reason  to  apprehend  that  resistance  will 
be  made  to  the  execution  of  the  process,  he  may  com- 
mand as  many  male  inhabitants  of  his  county  as  he 
may  think  proper  to  assist  him  in  overcoming  the 
resistance,  and,  if  necessary,  in  seizing,  arresting,  and 
confining  the  persons  resisting,  their  aiders  and  abet- 
tors. The  officer  must  certify  to  the  court  from  which 
the  process  issued  the  names  of  the  persons  resisting, 
that  they  may  be  proceeded  against  in  due  time  for 
their  contempt  of  court.  If  it  appears  to  the  gov- 
ernor  that  the  civil    power  of  any  county  is  not  suffi- 


379  DUTIES  OF  SHERIFFS  AND  CONSTABLES.  §  373 

cient  to  enable  the  sheriff  to  execute  process  delivered 
to  him,  he  must,  upon   the  application  of  such   sheriff, 
order  such  portion  as  shall  be  sufficient,  or  the  whole, 
if  necessary,  of  the  organized   national   guard  or  en- 
rolled  militia  of  the   State,  to   proceed  to  the  assist- 
ance of  the  sheriff.     When   any  number  of  persons, 
whether  armed    or    not,  are    unlawfully  or   riotously 
assembled,  the  sheriff  of  the  county  and  his  deputies, 
the  officials  governing  the  town  or  city,  or  the  justices 
of  the  peace  and  constables  thereof,  or  any  of  them, 
must  go  among  the  persons  assembled,  or  as  near  to 
them  as  possible,  and  command  them,  in  the  name  of 
the   people  of  the  State,  immediately  to  disperse.     If 
the  persons  assembled  do  not  immediately  disperse, 
such  magistrate  and  officers  must  arrest  them,  and  to 
that  end  may  command  the  aid  of  all  persons  present 
or  within  the  county.     When  there  is  an  unlawful  or 
riotous  assembly  with  the  intent  to  commit  a   felony, 
or  to  offer  violence  to  person  or  property,  or  to  resist 
by  force  the  laws  of  the  State,  or  of  the  United  States, 
and  the  fact  is  made  known  to  the  governor,  or  to 
any  justice  of  the  Supreme  Court,  or  to  the  superior 
judge  or  sheriff  of  the  county,  or  to  the  mayor  of  a 
city,  or  to  the  president  of  the  Board  of  Supervisors 
of  the   cities  and   counties   of   Sacramento    and    San 
Francisco,  either  of  those  officers  may  issue  an  order 
directed   to   the   commanding  officer  of  a  division  or 
brigade  of  the  organized   national  guard   or  enrolled 
militia  of  the   State,   to  order  his   command,  or  such 
part  thereof  as  may  be  necessary,  into  active  service, 
and  to  appear  at  a  time  and  place  therein  specified  to 
aid  the  civil  authorities  in  suppressing  violence   and 
enforcing   the   laws   (§§    723-728,   Penal  Code)  ;    and 
such  armed  force  must  obey  the  orders  of  such  civil 


§§  374-3/6       DUTIES  OF  SilKRIFFS  AND  CONSTABLES.         380 

officer  in  relation  thereto.  (§  730,  Penal  Code.)  If 
in  the  opinion  of  such  civil  officer,  it  shall  become 
necessary  that  the  troops  shall  fire  or  charge  upon 
any  mob  or  body  of  persons  so  assembled,  such  civil 
officer  shall  give  a  written  order  to  that  effect  to 
the  superior  officer  present  in  command  of  such 
troops,  who  will  at  once  proceed  to  carry  out  the 
order,  and  shall  direct  the  firing  and  attack  to  cease 
only  when  such  unlawful  assembly  shall  have  been 
dispersed,  or  when  ordered  to  do  so  by  the  proper 
civil  authority.      (§  731,  Penal  Code.) 

§  374.  Liability  on  Unfinished  Process.  —  It 
shall  be  the  duty  of  all  officers  to  complete  the  busi- 
ness of  their  respective  offices  to  the  time  of  the  ex- 
piration of  their  respective  terms ;  and  any  officer 
failing  to  do  so  is  liable  to  pay  to  his  successor  the 
full  value  of  such  uncompleted  services. 

§  375-  VVhen  Officer  may  Hold  Over. — When 
the  term  of  an  officer  expires,  and  the  law  or  the 
Constitution  authorizes  him  to  hold  over  until  his 
successor  is  elected  and  qualified,  the  old  incumbent  is 
authorized  to  discharge  the  duties  of  the  office  until  a 
qualified  successor  presents  himself,  who  has  been 
elected  by  the  body  upon  which  the  power  of  election 
is  devolved ;  and  the  governor  has  no  power  to 
appoint  a  successor.       (People  z'.  Tilton,  t^j  Cal.  614.) 

§  376.  The  Fee  Book. — The  sheriff  must  keep  a 
fee  book,  open  to  the  public  inspection  during  office 
hours,  in  which  must  be  entered  at  once,  and  in  detail, 
all  fees  or  compensation  of  whatever  nature,  kind,  or 
description,    collected   or  chargeable.        On   the  first 


381  DUTIES  OK  SHERIFFS  AND  CONSTABLES.  ^377 

Monday  of  each  and  every  mondi  the  officer  must  add 
up  each  cokimn  in  his  book  to  the  first  day  of  the 
month,  and  set  down  the  totals  ;  and  on  the  expiration 
of  his  term,  he  must  dehver  all  fee  books  kept  by  him 
to  the  county  auditor.  The  fees  must  be  paid  to  the 
county  treasurer  on  the  first  Monday  of  each  month, 

§  377.  Prepayment  of  Fees. — The  sheriff  is  not 
in  any  case,  except  for  the  State  and  county,  to  per- 
form any  official  services,  unless  upon  the  prepayment 
of  his  fees,  except  in  cases  on  habeas  corpus,  and  on 
such  payment  the  officer  must  perform  the  services 
required.  For  every  failure  or  refusal  to  perform 
official  duty  when  the  fees  are  tendered,  the  officer  is 
liable  on  his  official  bond.  Every  ofificer,  upon  receiv- 
ing any  fees  for  official  duty  or  service,  may  be 
required  by  the  person  paying  the  same  to  make  out 
in  writing  and  deliver  to  such  person  a  particular 
account  of  such  fees,  specifying  for  what  they  respect- 
ively accrued,  and  shall  receipt  the  same  ;  and  if  he 
refuse  or  neglect  to  do  so  when  required,  he  shall  be 
liable  to  the  party  paying  the  same  in  treble  the 
amount  so  paid. 

The  statute  which  declares  that  "any  officer  may 
refuse  to  perform  any  services  in  a  civil  action  or 
proceeding,  until  the  fee  for  such  service  is  paid,"  is 
not  to  be  construed  as  prohibiting  the  officer  from 
performing  the  service  without  prepayment  of  fees, 
but  as  permissive  merely  ;  leaving  the  alternatives  of 
cash  in  advance  or  credit  to  his  own  election.  (Lick 
■z'.  Madden,  25  Cal.  202.) 

If,  when  services  are  demanded  of  an  officer  in  a 
civil  case,  he  fails  to  demand  hh  fees  in  advance,  his 
obligation  to  perform  the  duty  required  is  the  same  as 


§§378-380       DUTIES  OF  SHERIFFS  AND  CONSTABLES,        382 

it  would  be  if  the  fees  were  prepaid   or  tendered  in 
advance.     Id. 

§  378.  Deputy  Constables. — In  the  absence  of 
statutory  provisions  as  to  the  appointment  of  deputies 
by  constables,  the  common  law  rule  applies,  and  con- 
stables may  act  by  deputy  in  the  exercise  of  their 
ministerial  functions.  (Johnson  v.  Fennell,  35  Cal. 
711.) 

§  379.  Officer  cannot  act  as  Attorney. — It  is 
not  lawful  for  the  sheriff  nor  any  of  his  deputies  of  the 
city  and  county  of  San  Francisco  to  appear  or  advo- 
cate, or  in  any  manner  act  as  attorney,  counsel,  or 
agent  for  any  party  or  person  in  any  cause,  or  in 
relation  to  any  demand,  account,  or  claim  pending,  or 
to  be  sued  or  prosecuted  before  the  justices  of  the 
peace  of  that  city  and  county,  or  any  of  them,  or  which 
may  be  within  their  jurisdiction ;  and  a  violation  of 
this  provision  shall  be  deemed  a  misdemeanor  in  office. 

Sheriffs  and  constables  and  their  deputies  are  pro- 
hibited from  practicing  law  or  acting  as  attorneys  or 
counselors  at  law,  or  having  as  a  partner  a  lawyer  or 
anyone  who  acts  as  such. 

§  380.  Dereliction  a  Misdemeanor.  —  Every 
willful  omission  to  perform  any  duty  enjoined  by  law 
upon  any  public  officer,  or  person  holding  any  public 
trust  or  employment,  where  no  special  provision  shall 
have  been  made  for  the  punishment  of  such  delin- 
quency, is  punishable  as  a  misdemeanor.  (§  1 76,  Penal 
Code.)  In  Ex  Parte  Harrold,  47  Cal.  129,  it  is  de- 
clared that  this  provision  does  not  apply  to  conditions 
or  qualifications  on  which  the  incumbent's  right  to  hold 


383         DUTIES  OF  SlIKKIM'S  AND  CONSTAIJLES.       §§  381-384 

an    office    depends,    but   to   duties   pertaining   to   the 
office,  while  in  the  discharge  of  official  duties. 

§  381.  Gratuities  Prohibited. — Every  executive 
or  ministerial  officer  who  knowingly  asks  or  receives 
any  emolument,  gratuity,  or  reward,  or  any  promise 
thereof,  excepting  such  as  may  be  authorized  by  law, 
for  doing  any  official  act,  is  guilty  of  a  misdemeanor. 
(§  70.  Penal  Code.) 


o^ 


;82.  Penalty  for  Receiving  Illegal  Fees. — 
The  Board  of  Supervisors,  upon  receiving  a  certified 
copy  of  the  record  of  conviction  of  an  officer  for 
receiving  illegal  fees,  must  declare  his  office  vacant. 

§  383.  Making  Contracts  and  Buying  Claims. 
No  sheriff  or  constable  must  be  interested  in  any  con- 
tract made  by  him  in  his  official  capacity  ;  nor  may  he 
be  a  purchaser  at  any  sale,  nor  vendor  at  any  purchase 
made  by  him  in  his  official  capacity.  The  sheriff  is 
prohibited  by  law  from  buying  or  selling  warrants  or 
claims  upon  the  treasury,  except  for  services  rendered 
by  such  officer.  A  sheriff's  or  constable's  resignation 
must  be  in  writing  to  the  clerk  of  the  Board  of  Super- 
visors. 

§  384.  Duties  of  Sheriffs  and  Constables  under 
the  Act  of  1883. —  The  duties  of  sheriffs,  as  prescribed 
in  the  Act  to  Establish  a  Uniform  System  of  County 
and  Township  Governments,  approved  March  14, 
1883,  are  almost  identical  with  those  contained  in 
Article  IV,  Chapter  3,  Title  2,  of  the  Political  Code, 
and  those  duties  are  also  made  the  duties  of  constables 
by  §  43 1 5  of  the  same  code,  with  the  exceptions  of  the 


§  384  DUTIES  OF  SHERIFFS  AND  CONSTABLES.  384 

fourth  and  sixth  subdivisions  of  the  section  relating-  to 
the  attendance  upon  courts  and  care  of  the  county  jail, 
and  are  as  follows.     He  must  : 

1 .  Preserve  the  peace  ; 

2.  Arrest  and  take  before  the  nearest  magistrate,  for 
examination,  all  persons  who  attempt  to  commit  or  who 
have  committed  a  public  offense  ; 

3.  Prevent  and  suppress  any  affrays,  breaches  of  the 
peace,  riots,  and  insurrections  which  may  come  to  his 
knowledge  ; 

4.  Attend  all  courts,  except  Justices'  and  Police 
Courts,  held  within  his  county,  and  obey  their  lawful 
orders  and  directions  ; 

"5.  Command  the  aid  of  as  many  male  inhabitants  of 
his  county  as  he  may  think  necessary  in  the  execution 
of  these  duties  ; 

6.  Take  charge  of  and  keep  the  county  jail  and  the 
prisoners  therein  ; 

7.  Release  on  the  record  all  attachments  of  real 
property  when  the  attachment  placed  in  his  hand  has 
been  released  or  discharged  ; 

8.  Indorse  upon  all  process  and  notices  the  year, 
month,  day,  hour,  and  minute  of  reception,  and  issue 
therefor  to  the  person  delivering  it,  on  payment  of 
fees,  a  certificate  showing  the  names  of  the  parties, 
title  of  paper,  and  time  of  reception  ; 

9.  Serve  all  process  and  notices  in  the  manner  pre- 
scribed by  law  ; 

10.  Certify  under  his  hand,  upon  process  or  notices, 
the  manner  and  time  of  service,  or,  if  he  fails  to  make 
service,  the  reason  of  his  failure,  and  return  the  same 
without  delay. 

When  process  or  notices  are  returnable  to  another 
county,  he  may  inclose  such  process  or  notice   in   an 


385  DUTIES  OF  SHERIFFS  AND  CONSTABLES.  §  384 

envelope,  addressed  to  the  officer  from  whom  the  same 
emanated,  and  deposit  it  in  the  post-office,  prepaying 
postage. 

The  return  of  the  sheriff,  upon  process  or  notices, 
is  pn77ta  facie  evidence  of  the  facts  in  such  return 
stated. 

If  a  sheriff  does  not  return  a  notice  or  process  in 
his  possession  with  the  necessary  indorsement  thereon 
without  delay,  he  is  liable  to  the  party  aggrieved  for 
the  sum  of  $200  and  for  all  damages  sustained  by  him. 

If  the  sheriff  to  whom  a  writ  of  execution  is  deliv- 
ered neglects  or  refuses,  after  being  required  by  the 
creditor  or  his  attorney,  to  levy  upon  or  sell  any  prop- 
erty of  the  party  charged  in  the  writ  which  is  liable  to 
be  levied  upon  and  sold,  he  is  liable  to  the  creditor  for 
the  value  of  such  property. 

If  he  neglects  or  refuses  to  pay  over  on  demand,  to 
the  person  entitled  thereto,  any  money  which  may 
come  into  his  hands  by  virtue  of  his  office  (after  de- 
ducting all  legal  fees),  the  amount  thereof,  with  twenty- 
five  per  cent,  damages  and  interest  at  the  rate  of  ten 
per  cent,  per  month  from  the  time  of  demand,  may 
be  recovered  by  such  person. 

A  sheriff  who  suffers  the  escape  of  a  person  arrested 
in  a  civil  action,  without  the  consent  or  connivance  of 
the  party  in  whose  behalf  the  arrest  or  imprisonment 
is  made,  is  liable,  as  follows  : 

1.  When  the  arrest  is  upon  an  order  to  hold  to 
bail,  or  upon  a  surrender  in  exoneration  of  bail  be- 
fore judgment,  he  is  liable  to  the  plaintiff  as  bail ; 

2.  When  the  arrest  is  on  an  execution  or  commit- 
ment to  enforce  the  payment  of  money,  he  is  liable 
for  the  amount  expressed  in  the  execution  or  commit- 
ment ; 

25 


§  3S4  DUTIES  OF  SIIKRfFFS  AND  CONSTABLES.  386 

3.  When  the  arrest  is  on  an  execution  or  commit- 
ment other  than  to  enforce  tlie  payment  of  money,  he 
is  hable  for  the  actual  damages  sustained  ; 

4.  Upon  iDeing  sued  for  damages  for  an  escape  or 
rescue,  he  may  introduce  evidence  in  mitigation  and 
exculpation. 

He  is  liable  for  the  rescue  of  a  person  arrested  in  a 
civil  action,  equally  as  for  an  escape. 

An  action  cannot  be  maintained  against  the  sheriff  for 
a  rescue,  or  for  an  escape  of  a  person  arrested  upon 
an  execution  or  commitment,  if,  after  his  rescue  or 
escape,  and  before  the  commencement  of  the  action, 
the  prisoner  returns  to  the  jail,  or  is  retaken  by  the 
sheriff. 

No  direction  or  authority  by  a  party  or  his  attorney 
to  a  sheriff,  in  respect  to  the  execution  of  process  or 
return  thereof,  or  to  any  act  or  omission  relating 
thereto,  is  available  to  discharge  or  excuse  the  sheriff 
from  a  liability  for  neglect  or  misconduct,  unless  it  is 
contained  in  a  writing,  signed  by  the  attorney  of  the 
party,  or  by  the  party,  if  he  has  no  attorney. 

When  the  sheriff  is  committed,  under  an  execution 
or  commitment,  for  not  paying  over  money  received  by 
him  by  virtue  of  his  office,  and  remains  committed  for 
sixty  days,  his  office  is  vacant. 

A  sheriff  or  other  ministerial  officer  is  justified  in  the 
execudon  of  and  must  execute  all  process  and  orders 
regular  on  their  face  and  issued  by  competent  author- 
ity, whatever  may  be  the  defect  in  the  proceedings  upon 
which  they  were  issued.  But  if  the  proceedings  are 
shown  to  have  been  defective,  he  will  not  be  the  less 
liable  to  an  action  for  serving  the  writ  issued  thereon. 

The  officer  executing  process  must  then,  and  at  all 
times  subsequent,  so  long  as  he  retains  it,  upon  request, 


387  DUTIES  01-"  SIIKKIFFS  AND  CCJXSTAHLES.  §   385 

show  the  same,  with  all  papers  attached,  to  any  person 
interested  therein. 

The  sheriff  in  attendance  upon  court  must  act  as  the 
crier  thereof,  call  the  parties  and  witnesses  and  all 
other  persons  bound  to  appear  at  the  court,  and  make 
proclamation  of  the  opening  and  adjournment  of  the 
court,  and  of  any  other  matter  under  its  direction. 

Service  of  a  paper,  other  than  process  upon  the 
sheriff,  may  be  made  by  delivering  it  to  him,  or  to 
one  of  his  deputies,  or  to  a  person  in  charge  of  the 
office  during  office  hours,  or  if  no  such  person  be 
there,  by  leaving  it  in  a  conspicuous  place  in  the 
office. 

When  a  sheriff  is  a  party  to  an  action  or  proceed- 
ing, the  process  and  orders  therein,  which  it  would 
otherwise  be  the  duty  of  the  sheriff  to  execute,  must 
be  executed  by  the  coroner  of  the  county ;  provided, 
when  any  action  is  begun  against  the  sheriff,  all 
process  and  orders  may  be  served  by  any  person  a 
citizen  of  the  United  States,  over  the  age  of  eighteen 
years,  in  the  manner  provided  in  the  Code  of  Civil 
Procedure. 

Process  or  orders  in  an  action  or  proceeding  may 
be  executed  by  a  person  residing  in  the  county,  desig- 
nated an  elisor,  when  the  sheriff  and  coroner  are 
both  parties,  when  either  is  a  party  and  the  process 
is  against  the  other,  w^hen  either  is  a  party  and  there 
is  a  vacancy  in  the  office  of  the  other,  or  when  both 
are  disqualified,  or  by  reason  of  prejudice  would  not 
act  promptly  or  impartially. 

§  385.  Sheriff  to  Provide  Court-rooms. — §  144 
of  the  Code  of  Civil  Procedure  provides  that  if  suit- 
able rooms  for  holding  the  Superior   Courts  and  the 


§§  386,  ^Sy     DUTIES  of  sheriffs  and  constables.      388 

chambers  of  the  judges  of  said  courts  be  not  pro- 
vided in  any  city  and  count)^  or  county,  by  the  super- 
visors thereof,  together  with  the  attendants,  furniture, 
fuel,  Hghts,  and  stationery  sufficient  for  the  transac- 
tion of  business,  the  courts,  or  the  judge  or  judges 
thereof,  may  direct  the  sheriff  to  provide  such  rooms, 
attendants,  furniture,  fuel,  lights,  and  stationery;  and 
the  expenses  incurred,  certified  by  the  judge  or  judges 
to  be  correct,  shall  be  a  charge  against  the  county 
treasury, 

§  386;  Void  Confiscations. — So  much  of  §  636  of 
the  Penal  Code  as  declares  that  all  nets,  etc.,  used  in 
catching  or  taking  fish  in  violation  of  Chapter  i,  Title 
XV,  of  said  code,  shall  be  forfeited,  and  may  be  seized  by 
the  peace  officers  of  the  county,  and  by  them  destroyed 
or  sold,  is  unconstitutional  and  void.  (leck  z>.  Ander- 
son, 57  Cal.  251.)  Confiscations  without  a  judicial 
hearing  and  judgment,  after  due  notice,  are  void,  as 
not  being  due  process  of  law. 

§  387.  Sheriffs  to  give  Dead  Bodies  to  Physi- 
cians.— The  sheriff  or  keeper  of  a  county  jail  must 
surrender  the  dead  bodies  of  such  persons  as  are 
required  to  be  buried  at  the  public  expense  to  any 
physician  or  surgeon,  to  be  by  him  used  for  the  advance- 
ment of  anatomical  science,  preference  being  always 
given  to  medical  schools  by  law  established  in  this 
State,  for  their  use  to  the  instruction  of  medical  students. 
But  if  such  person  during  his  last  sickness  requested  to 
be  buried,  or  if,  within  twenty-four  hours  after  his 
death,  some  person  claiming  to  be  of  kindred  or  a 
friend  of  the  deceased  requires  the  body  to  be  buried, 
or  if  such  deceased  person  was  a  stranger  or  traveler 


389         DUTIES  OF  SlIKKIFFS  AND  CONSTABLES.       §§  388-39  I 

who  suddenly  died  before  making  himself  known,  such 
dead  body  must  be  buried  without  dissection.  (§  3094, 
Political  Code.) 

§  388.  Aid  to  Wrecked  Vessels. — The  sheriff  in 
each  county  must  give  all  possible  aid  and  assistance 
to  vessels  stranded  on  its  coast,  and  to  the  persons  on 
board  the  same,  and  exert  himself  to  save  and  preserve 
such  persons,  vessels,  and  their  cargoes,  and  all  goods 
and  merchandise  which  may  be  cast  by  the  sea  upon 
the  land,  and  to  this  end  may  employ  as  many  persons 
as  he  may  think  proper.  He  must  take  possession  of 
all  wrecked  property  found  and  keep  it  for  the  owner, 
or  until  disposed  of  in  accordance  with  Art.  IV,  Chap. 
I,  Tide  VI,  Political  Code. 

§  389.  Sheriff  as  Auctioneer. — In  any  city  or 
town  where  there  is  no  auctioneer,  the  sheriff  or  a 
constable  thereof  is  ex-officio  auctioneer,  and  is  permit- 
ted to  sell  any  property,  real  or  personal,  at  public 
auction  ;  and  for  any  delinquency  as  such  ex-officio 
auctioneer  he  is  liable  on  his  official  bond.  (§  3291, 
Polidcal  Code.) 

§  390.  Militia  Exemptions  from  Arrest. — No 
person  belonging  to  the  military  forces  is  subject  to 
arrest,  on  civil  process,  while  going  to,  remaining  at, 
or  returning  from  any  place  at  which  he  may  be 
required  to  attend  for  military  duty.  (§  2021,  Political 
Code.) 

§  391.  Process  of  Court-Martial. — Every  sheriff 
and  constable  must  serve  all  orders,  subpoenas,  or 
process  delivered  to  him  for  that  purpose  by  any  mem- 
ber of  a  court-martial.     (§  2084,  Political  Code.) 


§§  392-394       UUTIES  OF  SHERIFFS  AND  CONSTABLES.        39O 

§  392.  Intruders  on  Public  Lands. — If  any  per- 
son, under  any  pretense  of  any  claim  inconsistent  with 
the  sovereignty  and  jurisdiction  of  the  State,  intrudes 
upon  any  of  the  waste  or  ungranted  lands  of  the  State, 
the  district  attorney  of  the  county  must  immediately 
report  the  same  to  the  governor,  who  must  thereupon, 
by  a  written  order,  direct  the  sheriff  of  the  county  to 
remove  the  intruder ;  and  if  resistance  to  the  execu- 
tion of  the  order  is  made  or  threatened,  the  sheriff  may 
call  to  his  aid  the  power  of  the  county,  as  in  cases  of 
resistance  to  the  writs  of  the  people.  (§  42,  Political 
Code.) 

§  393.  Computing  Time. — The  time  in  which 
any  act  provided  by  law  is  to  be  done  is  computed 
by  excluding  the  first  day,  and  including  the  last, 
unless  the  last  day  is  a  holiday,  and  then  it  is  also 
excluded,     (§  12,  Political  Code.) 

§  394.  When  Act  Falls  on  Holiday.— When- 
ever any  act  of  a  secular  nature,  other  than  a  work 
of  necessity  or  mercy,  is  appointed  by  law,  or  con- 
tract to  be  performed  upon  a  particular  day,  which 
day  falls  upon  a  holiday,  such  act  may  be  performed 
upon  the  next  business  day  with  the  same  effect  as  if  it 
had  been  performed  upon  the  day  appointed.  (§  13, 
Political  Code.) 

Holidays  are  :  every  Sunday,  January  ist,  February 
2 2d,  May  30th,  July  4th,  December  25th,  every  day 
on  which  an  election  is  held  throughout  the  State, 
and  every  day  appointed  by  the  President  of  the 
United  States,  or  by  the  governor  of  this  State,  for 
a  public  fast,  thanksgiving,  or  holiday.  If  the  ist  day 
of  January,    the   2 2d    of  February,  the   30th  of  May, 


391         DUTIES  OF  SHERIFFS  AND  CONSTABLES.       §§395-399 

the  4th  of  July,  or  the  25th  of  December,  fall  upon  a 
Sunday,  the  Monday  following  is  a  holiday. 

§  395.  Trespass  by  Deputy. — A  trespass  com- 
mitted by  a  deputy  sheriff,  in  his  official  character,  is 
considered,  in  law,  as  committed  directly  and  per- 
sonally by  his  principal.      (Hirsch  v.  Raun,    39   Cal. 

315-) 

§  396.  Arrest  for  Fraud  and  Torts. — No  per- 
son can  be  arrested  for  debt  in  any  civil  action,  on 
mesne  or  final  process,  except  in  cases  of  fraud,  nor 
in  civil  actions  for  torts,  except  in  cases  of  willful  in- 
jur}^ to  persons  or  property. 

§  397-  When  Prisoner  may  not  be  Hand- 
cuffed.— By  the  common  law,  a  prisoner  is  entitled  to 
appear  for  trial,  upon  his  own  plea  of  not  guilt}^  free 
from  all  manner  of  shackles  or  bonds,  unless  there  is 
danger  of  his  escape.  (People  v.  Harrington,  42  Cal. 
165.) 

§  398.  Sheriff's  Notice  to  Sureties. — When  an 
action  is  brought  against  a  sheriff  for  an  act  done  by 
virtue  of  his  office,  he  should  at  once  notify  the  sure- 
ties on  the  indemnity  bond  given  to  him  in  such  case, 
else  he  will  not  be  entitled  to  the  remedy  provided  in 
§  1055  of  the  Code  of  Civil  Procedure. 

§  399.  Arrest  without  Warrant. — A  sheriff  or 
any  peace  officer  may,  with  or  without  a  warrant, 
arrest  a  person  under  the  following  conditions  : 

I.  For  a  public  offense  committed  or  attempted  in 
his  presence  ; 


§§400-403        DUTIES  OF  SHERIFFS  AND  CONSTABLES.        392 

2.  When  a  person  arrested  has  committed  a  felony, 
although  not  in  his  presence  ; 

3.  When  a  felony  has,  in  fact,  been  committed,  and 
he  has  a  reasonable  cause  for  believing  the  person 
arrested  to  have  committed  it ; 

4.  On  a  charge  made,  upon  a  reasonable  cause,  of 
the  commission  of  a  felony  by  the  party  arrested  ; 

5.  At  night,  when  there  is  reasonable  cause  to 
believe  that  he  has  committed  a  felony. 


§  400.  Officer  making  Arrest  may  Summon 
Aid. — An  officer,  or  any  person  making  an  arrest, 
may  orally  summon  as  many  persons  as  he  deems 
necessary  to  aid  him  therein.  Any  person  refusing  to 
assist  an  officer  when  so  called  upon,  is  punishable  by 
fine  of  not  less  than  fifty  nor  more  than  ^looo.  (§  150, 
Penal  Code.) 

§  401.  When  Warrant  must  be  Shown, — If  the 
person  making  the  arrest  is  acting  under  the  authority 
of  a  warrant,  he  must  show  the  warrant,  if  required. 
(§  842,  Penal  Code.) 

§  402.  When  Arrest  may  be  at  Night. — If  the 
offense  charged  is  a  felony,  the  arrest  may  be  made  on 
any  day,  and  any  time  of  the  day  or  night.  (§  840, 
Penal  Code.) 

§  403.     When  Arrest  cannot  be  Made  at  Night. 

When  the  offense  charged  is  a  misdemeanor,  the  arrest 
cannot  be  made  at  night,  unless  upon  the  direction  of 
the  magistrate  indorsed  upon  the  warrant.     Id, 


393        DUTIES  OF  SHERIFFS  AND  CONSTABLES.       §§  4O4-408 

§  404.  Night-time  Defined. — The  phrase  "  night- 
time," as  used  herein,  means  the  period  between  sun- 
set and  sunrise.     (§  3260,  Pohtical  Code.) 

§  405.  How  Arrest  is  Made. — The  person  mak- 
ing the  arrest  must  inform  the  person  to  be  arrested 
of  the  intention  to  arrest  him,  of  the  cause  of  the  arrest, 
and  the  authority  to  make  it,  except  when  the  person 
to  be  arrested  is  actually  engaged  in  the  commission 
of  or  an  attempt  to  commit  an  offense,  or  is  pursued 
immediately  after  its  commission,  or  after  an  escape. 
(§841,  Penal  Code.) 

§  406.  When  Force  may  be  Used. — When  the 
arrest  is  being  made  by  an  officer  under  the  authority 
of  a  warrant,  after  information  of  the  intention  to  make 
the  arrest,  if  the  person  to  be  arrested  either  flees  or 
forcibly  resists,  the  officer  may  use  all  necessary  means 
to  effect  the  arrest.     (§  843,  Penal  Code.) 

§  407.  When  Doors  may  be  Broken. — To  make 
the  arrest,  a  private  person,  if  the  offense  be  a  felony, 
and  in  all  cases  a  peace  officer,  may  break  open  the 
door  or  window  of  the  house  in  which  the  person  to  be 
arrested  is,  or  in  which  they  have  reasonable  grounds 
for  believing  him  to  be,  after  having  demanded  admit- 
tance and  explained  the  purpose  for  which  admittance  is 
desired.      (§  844,  Penal  Code.) 

§  408.  Taking  Weapons  from  Prisoners. — 
Any  person  making  an  arrest  may  take  from  the  per- 
son arrested  all  offensive  weapons  which  he  may  have 
about  his  person,  and  must  deliver  them  to  the  magis- 
trate before  whom  he  is  taken.     (§  846,  Penal  Code.) 


§§409-411        DUTIES  OF  SHERIFFS  AND  CONSTABLES.         394 

§  409.  Name  of  Defendant  in  Warrant. — The 
warrant  must  specify  the  name  of  the  defendant,  or, 
if  it  is  unknown  to  the  magistrate,  the  defendant  may 
be  designated  therein  by  any  name.  (§  815,  Penal 
Code.) 

§  410.  How  Executed  in  another  County. — 
If  the  defendant  is  in  another  county  dian  that  in 
which  the  warrant  is  issued,  it  may  be  served  therein 
upon  the  written  direction  of  a  magistrate  of  the 
county  in  which  it  is  to  be  served,  indorsed  upon  the 
warrant,  signed  by  him,  with  his  name  of  office,  and 
dated  at  the  county,  city,  or  town  where  it  is  made,  to 
the  following  effect:   "This  warrant  may  be  executed 

in  the  county  of ,"    (naming  the  county).     Such 

indorsement  cannot,  however,  be  made,  unless  the 
warrant  be  accompanied  with  a  certificate  of  the 
clerk  of  the  county  where  it  was  issued,  under  seal, 
as  to  the  official  character  of  the  magistrate  ;  or  un- 
less upon  the  oath  of  a  credible  vv^tness,  in  writing, 
indorsed  on  or  annexed  to  the  warrant,  proving  the 
handwridng  of  the  magistrate  by  whom  it  was  issued. 
(§§  819,  820,  Penal  Code.) 

§411.     Taking  Prisoner  Before  Magistrate. — 

If  the  offense  charged  is  a  felony,  the  officer  making 
the  arrest  must  take  the  defendant  before  the  magis- 
trate who  issued  the  warrant,  or  some  other  magis- 
trate of  the  same  county.      (§  821,  Penal  Code.) 

If  the  offense  charged  is  a  misdemeanor,  and  the 
defendant  is  arrested  in  another  county,  the  officer 
must,  upon  being  required  by  the  defendant,  take 
him  before  a  magistrate  in  that  county,  who  must 
admit  the  defendant  to  bail,  and  take  bail  from  him 
accordingly.     (§  822,  Penal  Code.) 


395        DUTIES  OF  SHERIFFS  AND  CONSTABLES.       §§412,  4  I  3 

On  taking-  the  bail,  the  magistrate  must  certify  that 
fact  on  the  warrant,  and  deHver  the  warrant  and  un- 
dertaking of  bail  to  the  officer  having  charge  of  the 
defendant.  The  officer  must  then  discharge  the  de- 
fendant from  arrest,  and  must,  without  delay,  deliver 
the  warrant  and  undertaking  to  the  clerk  of  the  court 
at  which  the  defendant  is  required  to  appear.  (§  823, 
Penal  Code.) 

If,  on  the  admission  of  the  defendant  to  bail,  the 
bail  is  not  forthwith  given,  the  officer  must  take  the 
defendant  before  the  magistrate  who  issued  the  war- 
rant, or  in  case  of  his  absence  or  inability  to  act,  be- 
fore the  nearest  or  most  accessible  magistrate  in  the 
same  county,  and  must  at  the  same  time  deliver  to 
the  maeistrate  the  warrant,  with  his  return  thereon 
indorsed  and  signed  by  him.  The  defendant  must  in 
all  cases  be  taken  before  the  magistrate  without  un- 
necessary delay.      (§§  824,  825,  Id.) 

§412.  Proceedings  Before  Magistrate. — If  the 
defendant  is  brought  before  a  magistrate  other  than 
the  one  who  issued  the  warrant,  the  depositions  on 
which  the  warrant  was  orranted  must  be  sent  to  that 
magistrate,  or,  if  they  cannot  be  procured,  the  prose- 
cutor and  his  witnesses  must  be  summoned  to  give 
their  testimony  anew.      (§  826,  Penal  Code.) 

§  413.  Offense  Triable  in  another  County. — 
When  an  information  is  laid  before  a  maoistrate,  of 
the  commission  of  a  public  offense,  triable  in  another 
county  of  the  State,  but  showing  that  the  defendant  is 
in  the  county  where  the  information  is  laid,  the  war- 
rant must  require  the  defendant  to  be  taken  before 
the  nearest  or  most  accessible  magistrate  of  the  county 


§§4I4-4't6       DUTIES  OF  SHERIFFS  AND  CONSTABLES.       396 

in  which  the  offense  is  triable,  and  the  depositions  of 
the  informant  or  prosecutor,  and  of  the  witnesses  who 
may  have  been  produced,  must  be  dehvered  by  the 
magistrate  to  the  officer  to  whom  the  warrant  is  de- 
hvered. The  officer  must  then  take  the  defendant  and 
the  papers  to  such  magistrate,  with  his  return  indorsed 
on  the  warrant.  If  the  offense  in  such  case  is  a 
misdemeanor,  the  officer  must,  if  the  defendant  re- 
quire it,  take  him  before  the  magistrate  of  the  county 
in  which  the  warrant  was  issued,  who  must  admit  him 
to  bail.     (§§  827-8-9,  Penal  Code.) 

§  414.  Retaking  after  Escape.  —  If  a  person 
arrested  escape,  or  is  rescued,  the  officer  may  im- 
mediately pursue  and  retake  him  at  any  time  and  any 
place  within  the  State.  (§  854,  Penal  Code.)  If  the 
prisoner  escape  into  another  State,  the  officer  cannot 
retake  him  except  upon  a  requisition  from  the  gov- 
ernor of  the  State  from  which  he  escaped.  To  retake 
an  escaped  prisoner,  the  officer  pursuing  may  break 
open  an  outer  or  inner  door  or  window,  if  after  notice 
of  his  intention,  he  is  refused  admittance.    (§  855,  Id^ 

§  415.  Prisoner  Entitled  to  Counsel. — A  pris- 
oner is  entided  to  receive  visits  from  his  attorney  at 
all  reasonable  times. 

§  416.  Liability  for  Delay. — Every  public  officer 
or  other  person,  having  arrested  a  person  on  a  crim- 
inal charge,  who  willfully  delays  to  take  such  person 
before  a  magistrate  having  jurisdiction,  to  take  his 
examination,  is  guilty  of  a  misdemeanor.  (§  145, 
Penal  Code.) 


397        DUTIES  OF  SHERIFFS  AND  CONSTABLES.       §§  41  7-42  I 

§  417.  Rescuing  Prisoners. — Every  person  who 
rescues  or  attempts  to  rescue,  or  aids  another  person 
in  rescuing  or  attempting  to  rescue,  any  prisoner  from 
any  prison,  or  from  any  officer  or  person  having  him 
in  lawful  custody,  is  punishable  under  §  loi  of  the 
Penal  Code. 

§  418.  Escapes  from  Jail. — Every  prisoner  con- 
fined in  any  jail  who  escapes  or  attempts  to  escape 
therefrom,  is  guilty  of  a  misdemeanor.  Every  person 
who  assists  in  such  act  is  also  guilty  of  a  misdemeanor. 
(§§  107-9,  Penal  Code.) 

§  419.  Carrying  Articles  to  Prisoners. — Every 
person  who  carries  or  sends  into  a  prison  anything 
useful  to  aid  a  prisoner  in  making  his  escape,  with 
intent  thereby  to  facilitate  the  escape  of  any  prisoner 
confined  therein,  is  punishable  by  imprisonment  in  the 
state  prison  not  exceeding  ten  years  and  fine  not 
exceeding  $10,000.     (§§  108-10,  Penal  Code.) 

§  420.  Refusing  to  Receive  Prisoners. — §  142 
of  the  Penal  Code  provides  that  every  sheriff,  coroner, 
keeper  of  a  jail,  constable,  or  other  peace  officer,  who 
willfully  refuses  to  receive  or  arrest  any  person  charged 
with  a  criminal  offense,  is  punishable  by  fine  not 
exceeding  $5000,  and  imprisonment  in  the  county  jail 
not  exceeding  five  years. 

An  officer,  nevertheless,  should  be  guarded  as  to 
receiving  persons  as  prisoners  without  a  warrant  or 
commitment. 

§  421.  Making  Arrests,  etc..  Without  Author- 
ity.— Every  public  officer,  or  person  pretending  to  be 


§§  422-424       DUTIES  OF  SHERIFFS  AND  CONSTABLES.        398 

a  public  officer,  \vho,  under  the  pretense  or  color  of 
any  process  or  other  legal  authority,  arrests  any  person 
or  detains  him  against  his  will,  or  seizes  or  levies  upon 
any  property,  or  dispossesses  anyone  of  any  lands  or 
tenements,  without  a  regular  process  or  other  lawful 
authority  therefor,  is  guilty  of  a  misdemeanor.  (§  146, 
Penal  Code.) 

§  422.  Assaults  by  Officers.  —  Every  public 
officer  who,  under  color  of  authority,  without  lawful 
necessity,  assaults  or  beats  any  person,  is  punishable 
by  fine  not  exceeding  $5000,  and  imprisonment  in  the 
county  jail  not  exceeding  five  years.  (§  149,  Penal 
Code.) 

§  423.  Refusing  to  Aid  Officers. — Every  male 
person  above  eighteen  years  of  age  who  neglects  or 
refuses  to  join  the  posse  comitatiis,  or  power  of  the 
county,  in  arresting  any  person,  or  in  retaking  an 
escape,  or  to  prevent  any  breach  of  the  peace,  or  the 
commission  of  any  criminal  offense,  being  thereto 
lawfully  required  by  any  sheriff,  deputy  sheriff,  coron- 
er, constable,  judge,  or  justice  of  the  peace,  or  other 
officer  concerned  in  the  administration  of  justice,  is 
punishable  by  fine  of  not  less  than  fifty  nor  more  than 
$1000.      (§  150,  Penal  Code.) 

§  424.  Prisoners  brought  from  other  Counties 
as  Witnesses.  —  When  it  is  necessary  to  have  a 
person  imprisoned  in  the  state  prison  brought  before 
any  court,  or  a  person  imprisoned  in  a  county  jail 
brought  before  a  court  sitting  in  another  county,  an 
order  for  that  purpose  may  be  made  by  the  court  and 
executed  by  the  sheriff  of  the  county  where  it  is  made. 


399        DUTIES  OF  SHERIFFS  AND  CONSTABLES.       §§  425-429 

§  425.  Food  and  Lodging  for  Juries. — While 
a  jury  are  kept  together,  either  during  the  progress  of 
the  trial  or  after  their  retirement  for  deliberation,  they 
must  be  provided  by  the  sheriff,  at  the  expense  of  the 
county,  with  suitable  and  sufficient  food  and  lodging, 
(§  1 1 36,  Penal  Code.) 

§  426.  Inhumanity  to  Prisoners. — Every  officer 
who  is  guilty  of  willful  inhumanity  or  oppression  to- 
ward any  prisoner  under  his  care  or  in  his  custody,  is 
punishable  by  fine  not  exceeding  ^2000,  and  by  re- 
moval from  office.     (§  147,  Penal  Code.) 

§  427.  Gambling. — Every  sheriff,  district  attorney, 
constable,  or  police  officer  must  inform  against  and 
diligently  prosecute  persons  whom  they  have  reason- 
able cause  to  believe  offenders  against  the  provisions 
of  the  Penal  Code  relative  to  gambling;  and  every 
such  officer  refusing  or  neglecting  so  to  do,  is  guilty 
of  a  misdemeanor.     (§  335,  Penal  Code.) 

§  428.  Injuring  Jails. — Every  person  who  will- 
fully and  intentionally  breaks  down,  pulls  down,  or 
otherwise  destroys  or  injures  any  public  jail  or  other 
place  of  confinement,  is  punishable  by  fine  not  exceed- 
ing ^10,000  and  by  imprisonment  in  the  state  prison 
not  exceeding  five  years.      (§  606,  Penal  Code.) 

§  429.  Removal  from  Office. — In  addition  to  the 
penalty  affixed,  by  express  terms,  to  every  neglect  or 
violation  of  official  duty  on  the  part  of  public  officers, 
State,  county,  city,  or  township,  where  it  is  not  so  ex- 
pressly provided,  they  may,  in  the  discretion  of  the 
court,  be  removed  from  office.      (§  661,  Penal  Code.) 


§§  430,  43  I       DUTIES  OF  SHERIFFS  AND  CONSTABLES.        4OO 

§  430.  Jurisdiction  of  Offenses. — When  a  pub- 
lic offense  is  committed  on  the  boundary  of  two  or 
more  counties,  or  within  five  hundred  yards  thereof, 
the  jurisdiction  is  in  either  county.  When  an  offense 
is  committed  in  this  State,  on  board  a  vessel  navi- 
gating a  river,  bay,  slough,  lake,  or  canal,  or  lying 
therein,  in  the  prosecution  of  her  voyage,  the  juris- 
diction is  in  any  county  through  which  the  vessel  is 
navigated  in  the  course  of  her  voyage,  or  in  the 
county  where  the  voyage  terminates  ;  and  when  the 
offense  is  committed  in  this  State,  on  a  railroad  train 
or  car  prosecuting  its  trip,  the  jurisdiction  is  in  any 
county  through  which  the  train  or  car  passes  in  the 
course  of  her  trip,  or  in  the  county  where  the  trip 
terminates.  When  the  offense,  either  of  bigamy  or 
incest,  is  committed  in  one  county  and  the  defendant 
is  apprehended  in  another,  the  jurisdiction  is  in  either 
county.  When  property  taken  in  one  county  by 
burglary,  robbery,  larceny,  or  embezzlement,  has 
been  brought  into  another,  the  jurisdiction  of  the 
offense  is  in  either  county;  but  if  at  any  time  before 
the  conviction  of  the  defendant  in  the  latter,  he  is  in- 
dicted in  the  former  county,  the  sheriff  of  the  latter 
county  must,  upon  demand,  deliver  him  to  the  former. 
The  jurisdiction  on  violation  of  the  law  relating  to 
prize-fights,  is  in  any  county  in  which  any  act  is  done 
toward  the  commission  of  the  offense  ;  into,  out  of, 
or  through  which  the  offender  passed  to  commit  the 
offense  ;  or  where  the  offender  is  arrested.  (§§  782, 
7^3^  785.  786,  795.  l^enal  Code.) 

§  43 1 .  Service  of  Bench  Warrant. — The  bench 
warrant,  for  the  arrest  of  a  person  under  indictment 
or  presentment,   may  be  served   in   any  county,  and 


40I  DUTIES  OF  SHERIFFS  AND  CONSTABLES.  §  43  I 

need  not  be  indorsed  by  a  magistrate  of  that  county. 
When  the  offense  is  not  punishable  with  death,  the 
officer  must,  if  required,  take  the  defendant  before  a 
magistrate  in  the  county  in  which  it  is  issued,  or  in 
which  he  is  arrested,  for  the  purpose  of  giving  bail. 
But  if  the  offense  is  punishable  with  death,  the  officer 
must  deliver  him  into  custody,  according  to  the  com- 
mand of  the  bench  warrant. 

For  arrest  after  presentment,  see  §§  935  and  936, 
Penal  Code;  and  for  arrest  after  judgment,  §§  1197, 
1 198,  1 199,  Penal  Code. 


26 


CHAPTER  XVIII. 

SUBPCENAS  IN  CIVIL  AND  CRIMINAL  CASES. 

In  Civil  Cases. 

§  432.  Issued  by  Justice  of  the  Peace. 

§  433.  Issued  with  Blank. 

§  434.  Subpoenas  Defined. 

§  435.  How  Issued. 

§  436.  How  Served. 

§  436.  Witness  Fees. 

§  437.  Concealed  Witness. 

I  438-  When  Witness  Compelled  to  Attend. 

§  439.  Arrest  of  Witness. 

§  440.  If  Witness  be  a  Prisoner. 

§  441.  Witnesses  Protected  from  Arrest. 

§  442.  When  Arrest  of  Witness  is  Void. 

§  443.  Liability  of  Officer  for  Detention  of  Witness. 

§  444.  Discharge  of  Witness  from  Arrest. 

§  445.  Witnesses  Before  Board  of  Supervisors. 

In  Cinniinal  Cases. 
§  446.     Subpoena  Defined  and  Who  May  Issue. 
§  447.     By  Whom  and  How  Served. 
§  448.     Foreign  Subpoena. 
§  449.     Expenses  of  Witnesses. 

In  Civil  Cases. 
§  432.  Issued  by  Justice  of  the  Peace. — Justices 
of  the  peace  may  issue  subpoenas  in  any  action  or 
proceeding  in  the  courts  held  by  them,  and  final  pro- 
cess on  any  judgment  recovered  therein,  to  any  part 
of  the  count}'-.      (§  919,  C.  C.  P.) 


403  SUBPCENAS CIVIL  AND  CRIMINAL.       §§  433-435 

§  433.  Issued  with  Blank. — The  summons,  exe- 
cution, and  every  other  paper  made  or  issued  by  a 
justice,  except  a  subpoena,  must  be  issued  without  a 
blank  left  to  be  filled  by  another,  otherwise  it  is  void. 
(§  920,  C.  C.  P.) 

§  434.  Subpoena  Defined. — The  process  by  which 
the  attendance  of  a  witness  is  required  is  a  subpoena. 
It  is  a  writ  or  order  directed  to  a  person  and  requiring 
his  attendance  at  a  particular  time  and  place  to  testify 
as  a  witness.  It  may  also  require  him  to  bring  with 
him  any  books,  documents,  or  other  things  under  his 
control,  which  he  is  bound  by  law  to  produce  in 
evidence.     (§  1985,  C.  C.  P.) 

§  435.  How  Issued. — The  subpoena  is  issued  as 
follows : 

1.  To  require  attendance  before  a  court,  or  at  the 
trial  of  an  issue  therein,  it  is  issued  under  the  seal  of 
the  court  before  which  the  attendance  is  required,  or 
in  which  the  issue  is  pending ; 

2.  To  require  attendance  out  of  the  court,  before  a 
judge,  jusdce,  or  other  officer  authorized  to  administer 
oaths  or  take  tesdmony  in  any  matter  under  the  laws 
of  this  State,  it  is  issued  by  the  judge,  justice,  or  any 
other  officer  before  whom  the  attendance  is  required  ; 

3.  To  require  attendance  before  a  commissioner 
appointed  to  take  testimony  by  a  court  of  a  foreign 
country,  or  of  the  United  States,  or  of  any  other  State 
in  the  United  States,  or  of  any  other  district  or  count)^ 
within  this  State,  or  before  any  officer  or  officers 
empowered  by  the  laws  of  the  United  States  to  take 
testimony,  it  may  be  issued  by  any  judge  or  justice  of 
the  peace  in  places  within  their  respective  jurisdiction  ; 


§  43 6  SUBPCENAS CIVIL  AND  CRIMINAL.  404 

with  like  power  to  enforce  attendance,  and,  upon 
certificate  of  contumacy  to  said  court,  to  punish  con- 
tempt of  their  process,  as  said  judge  or  justice  could 
exercise  if  the  subpoena  directed  the  attendance  of  the 
witness  before  their  courts  in  a  matter  pending  therein. 
(§  1986.  C.  C.  P.) 

§436.     How    Served.  —  Witness    Fees. — The 

service  of  a  subpoena  (in  civil  proceedings)  is  made  by 
showing  the  original  and  delivering  a  copy,  or  a  ticket 
containing  its  substance,  to  the  witness  personally, 
giving  or  offering  to  him  at  the  same  time,  if  demanded 
by  him,  the  fees  to  which  he  is  entitled  for  travel  to 
and  from  the  place  designated,  and  one  day's  attend- 
ance there.  The  service  must  be  made  so  as  to  allow 
the  witness  a  reasonable  time  for  preparation  and 
travel  to  the  place  of  attendance.  Such  service  may 
be  made  by  any  person.  (§  1987,  C.  C.  P.)  The 
mileage  is  twenty  cents  per  mile  to  the  place  of  trial, 
excepting  for  witnesses  before  a  justice  of  the  peace 
in  Monterey  county,  in  civil  cases,  who  are  entitled  to 
$2  per  day,  but  no  mileage.  §  3 1  of  An  Act  to  Regu- 
late Fees,  etc.,  approved  March  5,  1870,  provides  that: 
For  attending  in  any  civil  suit  or  proceeding,  before 
any  court  of  record,  referee,  commissioner,  or  justice 
of  the  peace,  for  each  day,  ^2  ;  for  traveling  to  the 
place  of  trial,  for  each  mile,  twenty  cents.  In  case  of 
impeachment  and  contested  elections,  for  traveling  to 
the  place  of  trial,  ten  cents  per  mile.  No  person 
shall  be  obliged  to  attend  or  testify  in  a  civil  action, 
unless  his  fees  shall  have  been  tendered,  or  he  shall 
have  not  demanded  the  same.  §  43  of  the  same  act 
(see  also  Hittell's  Codes  and  Statutes,  vol.  2,  p.  1468,) 
provides  as  follows  : 


405  SUBPCENAS Civil.  AND  CRIMINAL.       §§  437,  438 

The  attorney-general,  or  any  district  attorney,  is 
authorized  to  cause  subpoenas  to  be  issued,  and  compel 
the  attendance  of  witnesses  on  behalf  of  the  State, 
without  paying  or  tendering  fees  in  advance,  to  either 
officers  or  witnesses  ;  and  any  witness  refusing  or  fail- 
ing to  attend,  after  being  served  with  a  subpoena,  may 
be  proceeded  against,  and  shall  be  liable  in  the  same 
manner  as  is  provided  by  law  in  other  cases  where  fees 
have  been  tendered  or  paid. 

The  clerk  of  any  court  before  which  any  witness 
shall  have  attended  on  behalf  of  the  State,  in  any  civil 
action,  shall  give  to  such  witness  a  certificate,  under 
seal,  of  travel  and  attendance,  which  shall  entitle  him 
to  receive  the  same  from  the  state  treasury  on  the  con- 
troller's warrant. 

§  437.  Concealed  Witness. — If  a  witness  is  con- 
cealed in  a  building  or  vessel,  so  as  to  prevent  the 
service  of  a  subpoena  upon  him,  any  court  or  judge,  or 
any  officer  issuing  a  subpoena,  may,  upon  proof  by 
affidavit  of  the  concealment,  and  of  the  materiality  of 
the  witness,  make  an  order  that  the  sheriff  of  the  county 
serve  the  subpoena ;  and  the  sheriff  must  serve  it 
accordingly,  and  for  that  purpose  may  break  into  the 
building  or  vessel  where  the  witness  is  concealed.  (§ 
1988,  C.  C.  P.) 

§  438.     When  W^itness  Compelled  to  Attend. — 

A  witness  is  not  obliged  to  attend  as  a  witness  before 
any  court,  judge,  justice,  or  any  other  officer,  out  of 
the  county  in  which  he  resides  (in  civil  proceedings), 
unless  the  distance  be  less  than  thirty  miles  from  his 
place  of  residence  to  the  place  of  trial.      (§  1989,  C.  C. 

P-) 


§§  439-441       SUBPCENAS CIVIL  AND  CRIMINAL.  406 

§  439.  Arrest  of  Witness. — Every  warrant  to 
arrest  or  commit  a  witness  must  be  directed  to  the 
sheriff  of  the  county  where  the  witness  may  be,  and 
must  be  executed  by  him  in  the  same  manner  as  pro- 
cess issued  by  the  Superior  Court.      (§  1994,  C.  C.  P.) 

§  440.     If  Witness  be  a  Prisoner. — If  the  witness 
be  a  prisoner,  confined  in  a  jail  or  prison  within  this 
State,  an  order  for  his  examination  in  the  prison  upon 
deposition,  or  for  his  temporary  removal  and  produc- 
tion before  a  court  or  officer,  for  the  purpose  of  being 
orally  examined,  may  be  made  as  follows  :    i .  By  the 
court  itself  in  which  the  action  or  special  proceeding  is 
pending,  unless  it  be  a  Justice's  Court ;  2.   By  a  justice 
of  the    Supreme    Court,  or  a  judge  of  the  Superior 
Court  of  the  county  where  the  action  or  proceeding  is 
pending,  if  pending  before  a  Justice's  Court,  or  before 
a  judge  or  other  person  out  of  court.     Such  order  can 
only  be  made  on  the  motion  of  a  party,  upon  affidavit 
showing  the  nature  of  the  action   or  proceeding,  the 
testimony  expected   from  the  witness,  and  its   materi- 
ality.     If  the  witness   be  imprisoned  in    the    county 
where  the  action  or  proceeding  is  pending,  his  produc- 
tion may  be  required.     In  all  other  cases,  his  examina- 
tion, when  allowed,  must  be  taken   upon   deposition. 

(§§  1995.  1996,  1997.  C.  C.  P.) 

§441.  Witnesses  Protected  from  Arrest. — 
Every  person  who  has  been,  in  good  faith,  served  with 
a  subpoena  to  attend  as  a  witness  before  a  court,  judge, 
commissioner,  referee,  or  other  person,  in  a  case 
where  the  disobedience  of  die  witness  may  be  punished 
as  a  contempt,  is  exonerated  from  arrest  in  a  civil 
action  while  going  to  the  place  of  attendance,  neces- 


407  SUBPCENAS CIVIL  AND  CRIMINAL.       §§  442-444 

sarlly  remaining  there  and  returning  therefrom,      (§ 
2067,  C.  C.  P.) 

§  442.  When  Arrest  of  Witness  is  Void. — The 
arrest  of  a  witness,  contrary  to  the  preceding  section, 
is  void,  and  when  willfully  made,  is  a  contempt  of  the 
court ;  and  the  person  making  it  is  responsible  to  the 
witness  arrested  for  double  the  amount  of  the  damages 
which  may  be  assessed  against  him,  and  is  also  liable 
to  an  action  at  the  suit  of  the  party  serving  the  witness 
with  a  subpoena,  for  the  damages  sustained  by  him  in 
consequence  of  the  arrest.      (§  2068,  C.  C.  P.) 

§  443,  Liability  of  Officer  for  Detention  of 
Witness. ^An  officer  is  not  liable  to  the  party  for 
making  the  arrest  in  ignorance  of  the  facts  creating 
the  exoneration,  but  is  liable  for  any  subsequent  de- 
tention of  the  party,  if  such  party  claim  the  exemp- 
tion and  make  an  affidavit  stating  : 

1.  That  he  has  been  served  with  a  subpoena  to  at- 
tend as  a  witness  before  a  court,  officer,  or  other  per- 
son, specifying  the  same,  the  place  of  attendance,  and 
the  action  or  proceeding  in  which  the  subpoena  was 
issued  ;  and, 

2.  That  he  has  not  thus  been  served  by  his  own 
procurement,  with  the  intention  of  avoiding  an  arrest ; 

3.  That  he  is  at  the  time  going  to  the  place  of  at- 
tendance, or  returning  therefrom,  or  remaining  there 
in  obedience  to  the  subpoena. 

The  affidavit  may  be  taken  by  the  officer,  and  ex- 
onerates him  from  liability  for  discharging  the  witness 
when  arrested.      (§  2069,  C.  C.  y.) 

§  444.     Discharge  of  Witness    from  Arrest. — 


§§  445'  44^       SUBPCENAS CIVIL  AND  CRIMINAL.  408 

The  court  or  officer  issuing  the  subpoena,  and  the 
court  or  officer  before  whom  the  attendance  is  re- 
quired, may  discharge  the  witness  from  an  arrest 
made  in  violation  of  §  2067,  C.  C.  P.  If  the  court 
have  adjourned  before  the  arrest,  or  before  appHca- 
tion  for  the  discharge,  a  judge  of  the  court  may  grant 
the  discharge.     (§  2070,  C.  C.  P.) 

§  445.  Witnesses  before  Board  of  Super- 
visors.— Neither  the  officers  serving  subpoenas  nor 
the  witnesses  subpoenaed  to  testify  in  relation  to  mat- 
ters of  public  concern  before  the  Board  of  Supervisors, 
are  entitled  to  have  their  fees  prepaid,  but  officers 
must  serve  the  subpoenas  and  witnesses  must  at- 
tend without  their  fees  being  prepaid.  The  Board 
must  allow  them  reasonable  compensation  for  services 
and  attendance.     (§  4069,  Political  Code.) 

In  Criminal  Cases. 

§  446.  Subpoena  Defined,  and  Who  may 
Issue. — The  process  by  which  the  attendance  of  a 
witness  before  a  court  or  magistrate  is  required  is  a 
subpoena  ;  it  may  be  signed  and  issued  by  : 

1 .  A  magistrate  before  whom  an  information  is  laid, 
for  witnesses  in  the  State,  either  on  behalf  of  the 
people  or  of  the  defendant ; 

2.  The  district  attorney,  for  witnesses  in  the  State, 
in  support  of  the  prosecution,  or  for  such  other  wit- 
nesses as  the  Grand  Jury,  upon  an  investigation  pend- 
ing before  them,  may  direct ; 

3.  The  district  attprney,  for  witnesses  in  the  State, 
in  support  of  an  indictment,  to  appear  before  the  court 
in  which  it  is  to  be  tried  ; 


409  SUBPCENAS CIVIL  AND  CRIMINAL.       §§  447-449 

4.  The  clerk  of  the  court  in  which  the  indictment  is 
to  be  tried  ;  and  he  must,  at  any  time,  upon  appHcation 
of  the  defendant,  and  without  charge,  issue  as  many 
blank  subpoenas,  subscribed  by  him  as  clerk,  for  wit- 
nesses in  the  State,  as  the  defendant  may  require. 
(§  1326,  Penal  Code.) 

§  447.  By  Whom  and  How  Served. — A  sub- 
poena may  be  served  by  any  person,  but  a  peace  officer 
must  serve  in  his  county  any  subpoena  delivered  to 
him  for  service,  either  on  the  part  of  the  people  or  of 
the  defendant,  and  must,  without  delay,  make  a  written 
return  of  the  service,  subscribed  by  him,  stating  the  time 
and  place  of  service.  The  service  is  made  by  show- 
ing the  original  to  the  witness  personally  and  informing 
him  of  its  contents.     (§  1328,  Penal  Code.) 

§  448.  Foreign  Subpoena. — No  person  is  obliged 
to  attend  as  a  witness  before  a  court  or  magistrate  out 
of  the  county  where  the  witness  resides  or  is  served 
with  the  subpoena,  unless  the  judge  of  the  court  in 
which  the  offense  is  triable,  or  a  justice  of  the  Supreme 
Court,  or  a  Superior  Court  judge,  upon  an  affidavit  of 
the  district  attorney  or  prosecutor,  or  of  the  defendant 
or  his  counsel,  stating  that  he  believes  the  evidence  of  the 
witness  is  material  and  his  attendance  at  the  examina- 
tion or  trial  necessary,  shall  endorse  on  the  subpoena 
an  order  for  the  attendance  of  the  witness,  (§  1330, 
Penal  Code.) 

§  449.  Expenses  of  Witnesses. — When  a  person 
attends  before  a  magistrate,  Grand  Jury  or  court,  as  a 
witness  in  a  criminal  case,  upon  a  subpoena,  or  in  pur- 
suance of  an  undertaking,  and  it  appears  that  he  has 


§  449  SUBPCENAS CIVIL  AND  CRIMINAL.  4IO 

come  from  a  place  outside  of  the  county,  or  that  he  is 
poor  and  unable  to  pay  the  expenses  of  such  attendance, 
the  court,  at  its  discretion,  if  the  attendanceof  the  witness 
be  upon  a  trial,  by  an  order  upon  its  minutes,  or,  in 
any  other  case,  the  judge,  at  his  discretion,  by  a  written 
order,  may  direct  the  county  auditor  to  draw  his  war- 
rant upon  the  county  treasurer  in  favor  of  the  witness 
for  a  reasonable  sum,  to  be  specified  in  the  order,  for 
the  necessary  expenses  of  the  witness.  (§  1329,  Penal 
Code.) 


CHAPTER    XIX. 

THE    COUNTY   JAIL. 

§  450.  By  whom  Kept  and  for  what  Used. 

§  451.  Rooms  Required  in  Jails. 

§  452.  Prisoners  to  be  Classified. 

§  453.  Prisoners  must  be  Confined. 

§  454.  United  States  Prisoners. 

§  455.  When  Jail  of  Contiguous  County  may  be  Used, 

§  456.  Removal  in  case  of  Fire. 

§  457.  Removal  in  case  of  Pestilence, 

§  458.  Service  of  Papers  on  Prisoners. 

§  459.  Guard  for  Jail. 

§  460.  Must  Receive  all  Prisoners  Committed. 

§  461.  Prisoners  on  Civil  Process. 

§  462.  Prisoners  Required  to  Labor. 

§  450.  By  whom  Kept  and  for  what  Used. — 
The  common  jails  in  the  several  counties  of  the  State 
are  kept  by  the  sheriffs  of  the  counties  in  which  they 
are  respectively  situated,  and  are  used  for  the  deten- 
tion of  all  persons  lawfully  committed  thereto.  The 
Board  of  Supervisors  shall  fix  the  price  at  which  the 
prisoners  shall  be  boarded,  and  such  expenses  are  a 
charge  against  the  county. 

§  451.  Rooms  Required  in  Jails. — The  Penal 
Code  requires  that  each  jail  shall  contain  a  sufficient 
number  of  rooms  to  allow  all   persons  belonging  to 


§§  452,  453  THE  COUNTY  JAIl.  412 

either  one  of  the  following"  classes  to  be  confined 
separately  and  distinctly  from  other  persons  belong- 
ing to  either  of  the  other  classes:  i.  Persons  com- 
mitted on  criminal  process  and  detained  for  trial ; 
2.  Persons  already  convicted  of  crime  and  held  un- 
der sentence  ;  3.  Persons  detained  as  witnesses  or 
held  under  civil  process,  or  under  an  order  imposing 
punishment  for  contempt  ;  4,  Males  separately  from 
females.  All  cells  should  be  frequently  searched,  and 
mattresses  and  bedding  thoroughly  overhauled,  for 
contraband  articles.  Saws,  files,  and  even  ropes,  are 
easily  smuggled  into  a  jail,  despite  the  watchfulness 
of  its  keepers.  There  is  no  criminal  so  hardened  in 
crime  but  that  he  has  sympathizers,  who  are  ever 
ready  to  aid  him  to  regain  his  liberty.  With  the 
more  desperate  classes,  it  is  a  constant  study  of  how 
to  escape  from  confinement.  With  such  prisoners, 
the  jailor  must  exercise  constant  vigilance  or  allow 
himself  to  be  outwitted. 

§452.  Prisoners  to  be  Classified.  —  Persons 
committed  on  criminal  process  and  detained  for  trial, 
persons  convicted  and  under  sentence,  and  persons 
committed  upon  civil  process,  must  not  be  kept  or 
put  in  the  same  room,  nor  shall  male  and  female  pris- 
oners (except  husband  and  wife)  be  kept  or  put  in  the 
same  room. 

§  453.  Prisoners  must  be  Confined. — A  pris- 
oner committed  to  the  county  jail  for  trial  or  for  ex- 
amination, or  upon  conviction  for  a  public  offense, 
must  be  actually  confined  in  the  county  jail  until  he  is 
legally  discharged  ;  and  if  he  is  permitted  to  go  at 
large  out  of  the  jail,  except  by  virtue  of  a  legal  order 
or  process,  it  is  an  escape. 


413  THE  COUNTY  JAIL.  §§  454-457 

§  454.  United  States  Prisoners. — The  sheriff 
must  receive,  and  keep  in  the  county  jail,  any  pris- 
oner committed  thereto  by  process  or  order  issued 
under  the  authority  of  the  United  States,  until  he  is  dis- 
charged accordinor  to  law,  as  if  he  had  been  com- 
mitted  under  process  issued  under  the  authority  of 
this  State ;  provision  being  made  by  the  United 
States  for  the  support  of  such  prisoner.  And  the 
sheriff  is  answerable  for  such  prisoner's  safe  keeping, 
in  the  courts  of  the  United  States,  according  to  the 
laws  thereof. 

§  455.  When  Jail  of  Contiguous  County  may- 
be Used. — When  there  is  no  jail  in  the  county,  or 
when  the  jail  becomes  unfit  or  unsafe  for  the  con- 
finement of  prisoners,  the  Superior  Court  judge  may 
designate  the  jail  of  a  contiguous  county  for  the  con- 
finement of  the  prisoners  of  his  county,  or  of  any  of 
them. 

§  456.  Removal  in  case  of  Fire. — When  a 
county  jail  or  a  building  contiguous  to  it  is  on  fire,  and 
there  is  reason  to  apprehend  that  the  prisoners  may 
be  injured  or  endangered,  the  sheriff  or  jailor  must 
remove  them  to  a  safe  and  convenient  place,  and 
there  confine  them  as  long  as  it  may  be  necessary  to 
avoid  the  danger. 

§  457.  Removal  in  case  of  Pestilence. — When 
a  pestilence  or  contagious  disease  breaks  out  in  or 
near  a  jail,  and  the  physician  thereof  certifies  that  it 
is  liable  to  endanger  the  health  of  the  prisoners,  the 
sheriff  may  remove  the  prisoners  upon  an  order  of 
the  Superior  judge. 


§§  458-461  THE  COUNTY  JAIL.  414 

§  458.  Service  of  Papers  on  Prisoners. — A 
sheriff  or  jailor  upon  whom  a  paper  in  a  judicial  pro- 
ceeding, directed  to  a  prisoner  in  his  custody,  is 
served,  must  forthwith  deliver  it  to  the  prisoner,  with 
a  note  thereon  of  the  time  of  its  service.  For  a  neg- 
lect to  do  so,  he  is  liable  to  the  prisoner  for  all  dam- 
ages occasioned  thereby. 

§  459.  Guard  for  Jail. — The  sheriff,  when  neces- 
sary, may,  with  the  assent  in  writing  of  the  Superior 
Court  judge,  or  in  a  city,  of  the  mayor  thereof,  em- 
ploy a  temporary  guard  for  the  protection  of  the 
county  jail,  or  for  the  safe-keeping  of  prisoners,  the 
expenses  of  which  are  a  county  charge. 

§  460.    Must  Receive  all  Persons  Committed. — 

The  sheriff  must  receive  all  persons  committed  to 
jail  by  competent  authority',  and  provide  them  with 
necessary  food,  clothing,  and  bedding,  for  which  he 
shall  be  allowed  a  reasonable  compensation,  to  be 
determined  by  the  Board  of  Supervisors. 

§  461.  Prisoners  on  Civil  Process. — Whenever 
a  person  is  committed  on  civil  process,  except  when 
the  people  of  the  State  are  a  party  thereto,  the  sheriff 
is  not  bound  to  receive  such  person,  unless  security 
is  given  on  the  part  of  the  party  at  whose  instance 
the  process  is  issued,  by  a  deposit  of  money,  to  meet 
the  expenses  for  him  of  necessary  food,  clothing,  and 
bedding,  or  to  detain  such  person  any  longer  than 
these  expenses  are  provided  for.  But  this  does  not 
apply  to  cases  where  a  party  is  committed  as  a  pun- 
ishment for  disobedience  to  the  mandates,  process, 
writs,  or  orders  of  court. 


415  THE  COUNTY  JAIL.  §  462 

§  462.  Prisoners  Required  to  Labor. — Persons 
confined  in  the  county  jail  under  a  judgment  of  im- 
prisonment rendered  in  a  criminal  action  or  proceed- 
ing, may  be  required  by  an  order  of  the  Board  of 
Supervisors  to  perform  labor  on  the  public  works  or 
ways  in  the  county,  and  the  Board  may  prescribe  and 
enforce  the  rules  and  regulations  under  which  such 
labor  is  to  be  performed. 


CHAPTER  XX. 


SEARCH      WARRANTS, 


§  463.     Search  Warrants  and  How  Served. 

§  463.  Search  Warrants  and  How  Served. — 
A  search  warrant  is  an  order  in  writing,  in  the  name 
of  the  people,  signed  by  a  magistrate,  directed  to  a 
peace  officer,  commanding  him  to  forthwith  search  the 
person  or  place  named  for  the  property  specified,  and 
to  bring  it  before  the  magistrate.  It  may  in  all  cases 
be  served  by  any  of  the  officers  mentioned  in  its  direc- 
tions, but  by  no  other  person,  except  in  aid  of  the 
officer  on  his  requiring  it,  he  being  present  and  acting 
in  its  execution.  The  officer  may  break  open  any  outer 
or  inner  door  or  window  of  a  house,  or  any  part  of  a 
house,  or  anything  therein,  to  execute  the  warrant,  if, 
■after  nodce  of  his  authority  and  purpose,  he  is  refused 
admittance.  He  may  also  break  open  doors  and 
windows  to  liberate  a  person  who,  having  entered  to 
aid  him,  is  detained  therein,  or  when  necessary  for  his 
own  liberation.  The  magistrate  issuing  the  warrant 
must  insert  a  direction  therein  that  it  be  served  in  the 
daytime,  unless  the  affidavits  are  posidve  that  the  prop- 
erty is  on  the  person  or  in  the  place  to  be  searched, 
in  which  case  he  may  insert  a  direcdon  that  it  be  served 


417  SEARCH  WARRANTS.  §  463. 

at  any  time  of  the  day  or  night.  A  search  warrant 
must  be  executed  and  returned  within  ten  days  after 
its  date  ;  after  the  expiration  of  this  time,  the  warrant, 
unless  executed,  is  void.  The  officer  must  give  a 
receipt  for  the  property  taken  to  the  person  in  whose 
possession  it  was  found  ;  and  file  with  the  return  an 
inventory  of  the  property  taken.  (§§  1523-37,  Penal 
Code.) 


27 


CHAPTER  XXI. 


FUGITIVES    FROM  JUSTICE. 


§  464.  Fugitives  from  Justice  may  be  brought  back  on  Requi- 
sition, and  how  Requisition  is  Procured. — Form  of  Applica- 
tion and  Affidavit. 


§  464.  Fugitives  from  Justice. — A  person  who 
flees  from  justice  to  another  State  may  be  brought  back 
upon  a  requisition  from  the  governor  of  this  State  upon 
the  governor  of  the  State  to  which  the  fugitive  has 
escaped.  To  obtain  such  requisition,  apphcation  must 
be  made  to  the  governor,  accompained  with  an  affidavit 
of  the  person  making  the  apphcation,  setting  forth  the 
name  of  the  fugitive,  the  crime  with  which  he  is  charged 
or  has  been  convicted,  and  the  present  whereabouts  of 
the  fugitive,  together  with  an  exempHfied  copy  of  the 
indictment  found  or  other  judicial  proceedings  had 
against  him  in  the  State  in  which  he  is  charged  to  have 
committed  the  offense.  All  papers  thus  forwarded 
must  be  in  duplicate.  The  application  for  a  requisi- 
tion should  request  the  appointment  of  some  person 
(naming  him)  as  a  suitable  person  to  receive  and  bring 
back  the  fugitive.  A  magistrate  may  issue  a  warrant 
for  the  apprehension  of  a  person  so  charged,  who  flees 


419  FUGITIVES  FROM  JUSTICE.  §  464 

from  justice  and  is  found  in  this  State.  The  proceed- 
ings for  the  arrest  and  commitment  are,  in  all  respects, 
similar  to  those  provided  for  the  arrest  and  commit- 
ment of  a  person  charged  with  a  public  offense  com- 
mitted in  this  State,  except  that  an  exemplified  copy  of 
an  indictment,  or  other  judicial  proceedings,  may  be 
received  as  evidence  before  the  mag^istrate.  A  fugitive 
from  another  State  may  be  committed  by  the  magis- 
trate to  the  proper  custody  in  the  county  for  a  reason- 
able time,  to  enable  the  arrest  of  the  fugitive  under  the 
warrant  of  the  executive  of  this  State  on  the  requisi- 
tion of  the  executive  of  the  State  in  which  the  crime 
was  committed,  unless  the  defendant  give  bail.  The 
accounts  of  the  person  employed  in  bringing  back  such 
fugitive  must  be  audited  by  the  State  board  of  examiners 
and  paid  out  of  the  State  treasury.  The  following 
forms  of  application  and  affidavit  may  be  varied  so  as 
to  conform  to  the  proceeding  under  which  the  fugitive 
is  souo-ht  to  be  arrested  : 

Application  for  Requisition. 

To  His  Excellency,  The  Hon.  Geo.  Stoneman, 

Governor  of  the  State  of  California  : 

The  undersigned  respectfully  makes  this  his  application  for  a 

requisition  upon  the  governor  of  the  State  of for  the  person 

of  John  Doe,  a  fugitive  from  justice  from  this  State,  whose  alleged 
crime  is  set  out  in  the  affidavit  and  warrant  accompanying  this 
application  ;  and  requests  the  appointment  by  your  Excellency 
of  Sinister  Hobbs  as  a  suitable  person  to  receive  and  bring  back 
to  this  State  said  fugitive  from  justice. 

George  Brown, 
Dated,  Oakland,  July  3d,  18S4. 


§  464  fugitives  from  justice.  42o 

Affidavit. 

In  the  Justice's  Court  of  Oakland  township,  county  of  Alameda, 
State  of  California. 

The  People  of  the  State  of  California 

Z'. 

John  Doe. 

George  Brown,  being  duly  sworn,  deposes  and  says :  That  John 
Doe  stands  charged  in  the  Justice's  Court  of  Oakland  township, 

county  of  Alameda,  State  of  California,  with  having  on  the 

day  of ,  18 — ,  committed  the  crime  of ;  that  a  complaint 

is  on  file  in  said  court,  charging  said  John  Doe  with  the  commis- 
sion of  said  crime,  upon  which  complaint  a  warrant  has  been  duly 
issued  by  the  justice  of  said  court  for  the  arrest  of  said  John  Doe; 
that  said  John  Doe  is  not  now  in  this  State,  but  has  fled  to  the 

State  of ,  and  is  now,  this  affiant  is  informed  and  believes, 

in  the  city  of ,  in  said  State  of ,  and  is  a  fugitive  from 

justice. 

Subscribed  and  sworn  to  before  ) 
me  this day  of ,  18 — .   j 


CHAPTER  XXII. 


REWARDS. 


§  465.     Offer  of  Reward  Binding, 
§  466.     When  Reward  is  not  Earned. 
§  467.     Actions  to  Recover  Reward. 

§  465.  Offer  of  Reward  Binding. — An  agreement, 
by  one  who  has  lost  property  by  fire  or  theft,  to  pay  a 
certain  sum  to  anyone  who  will  secure  the  arrest  and 
conviction  of  the  criminal,  is  not  a  nude  pact,  but  may 
be  enforced  by  a  person  performing  the  service. 

In  such  cases,  the  offer  of  a  reward  or  compensation 
by  public  advertisement,  either  to  a  particular  person 
or  class  of  persons,  or  to  any  and  all  persons,  Is  a  con- 
ditional promise  ;  and  If  anyone  to  whom  such  offer  is 
made  shall  perform  the  service  before  the  offer  Is 
revoked,  such  performance  Is  a  good  consideration, 
and  the  offer  becomes  a  legal  and  binding  contract. 
Until  the  performance,  the  offer  may  be  revoked  at 
pleasure. 

Such  advertisements,  upon  acceptance  of  their  terms 
and  performance  of  the  services,  become  written  con- 
tracts. 

Where  the  reward  was  for  such  Information  as 
would  lead  to  the  arrest  and  conviction  of  the  criminal, 
there  could  be  no  claim  for  the  money  until  trial  and 


§§  466,  467  REWARDS.  422 

conviction.  The  Statute  of  Limitations  begins  to  run 
from  that  time,  and  the  hmitation  would  be  four  years, 
as  on  a  written  contract.      (Ryer  v.  Stockwell,  14  Cal. 

1 34-) 

§  466.  When  Reward  is  Not  Earned. — An 
offer,  by  a  party  who  has  been  robbed,  of  a  reward  for 
the  arrest  and  conviction  of  the  robbers,  is  not  earned 
by  one  who  merely  communicates  to  the  party  robbed 
his  suspicions  that  a  certain  person  is  guilty,  with  a 
statement  that  others  were  satisfied  of  his  guilt,  and 
that  circumstances  pointed  strongly  towards  him,  and 
who  does  not  claim  the  reward  until  after  the  arrest 
and  conviction  of  the  robbers.  (Burke  v.  Wells,  Fargo 
&  Co.,  50  Cal.  218.) 

§  467.  Action  to  Recover  Reward. — In  an  action 
to  recover  a  reward  offered  by  the  defendants  for  the 
arrest  and  conviction  of  any  party  guilty  of  a  specified 
crime  (case  of  Hewitt  v.  Anderson,  56  Cal.  476),  the 
findings  of  the  court  were  in  favor  of  the  plaintiff,  with 
the  exception  of  the  finding  that  none  of  the  acts  of 
the  plaintiff  were  done  with  a  view  of  obtaining  said 
reward,  or  any  part  of  it ;  it  was  held  that  he  was  not 
entitled  to  recover.  To  entide  him  to  the  reward,  he 
must  show  that  he  knew  the  reward  was  offered,  and 
that  he  acted  in  reference  to  it,  and  in  faith  of  getting 
it. 


CHAPTER  XXIII. 

sheriffs'  and  constables'  forms. 

No.   I. 

Rehirn  on  Siunfuons  Sei^ved  oil  Minors. 

Sheriff's  Office,  )  ^^ 

County  of ,  j 

I  hereby  certify  that  I  received  the  within  summons  on  the 

day  of ,  1 8 — ,  and  personally  served  the  same  on  the 

day  of ,  1 8 — ,   on   Ellen  Brown,  and   also   on    Ellen 


Brown  as  administratrix  of  the  estate  of  James  Brown,  deceased, 
and  also  on  Ellen  Brown  as  the  mother  of  Nellie  B.  Brown,  a 
minor  under  the  age  of  fourteen  years,  and  also  on  Kate  T. 
Brown,  defendants  named  in  said  summons,  by  delivering  to  and 
leaving  with  said  Ellen  Brown,  personally,  and  in  her  own  right, 

in  said  county,   a   copy  of  said   summons,   with    a    copy 

of  the  complaint  in  the  action  named  therein,  and  by  delivering 
to  and  leaving  with  said  Ellen  Brown  as  administratrix  of  the 
estate  of  James  Brown,  deceased,  personally,  in  said  county,  a 
copy  of  said  summons,  and  by  delivering  to  and  leaving  with  said 
Ellen  Brown,  personally,  as  the  mother  of  defendant  Nellie  B. 
Brown,  a  minor  under  the  age  of  fourteen  years,  in  said  county, 
a  copy  of  said  summons,  and  by,  at  the  same  time,  delivering 
to  and  leaving  with  said  Nellie  B.  Brown,  a  minor,  as  aforesaid, 
personally,  a  copy  of  said  summons,  and  by  delivering  to  and  leav- 
ing with  the  defendant,  Kate  T.  Brown,  personally,  in  said  county, 
a  copy  of  said  summons. 

Dated  at ,  the day  of ,  i8 — . 

,  Sheriff 

By ,  Deputy  Sheriff. 

Sheriff's  fees,  $ . 


Nos.  2,  3      sheriffs'  and  constables'  forms.  424 

Note. — Although  the  language  of  the  statute  does 
not  in  express  terms  declare  that  the  copy  of  sum- 
mons delivered  to  a  defendant  must  be  left  with  him, 
yet  it  is  obvious  that  the  spirit  of  the  law  would  be 
violated  if  the  copy  were  immediately  taken  from  a 
•defendant  and  used  for  service  upon  another  person ; 
and  it  is  therefore  deemed  best  that  the  return  of 
service  should  show  that,  not  only  the  letter  of  the 
law.  but  its  intent,  has  been  complied  with. 

No.  2. 
Rehiru  of  Service  of  Summons  on  One  Defendant. 

Shei-ift's  Office,  j  ^^ 

County  of ,  j 

I  hereby  certify  that  I  received  the  within  summons  on  the 

day  of ,  18 — ,  and  personally  served  the  same  upon  John  Doe, 

the  within  named  defendant,  by  delivering  to  and  leaving  with 

said   defendant,  personally,  in  the  county  of ,  on  the 

day  of ,  18 — ,  a  copy  of  said  summons,  attached  to  a  copy  of 

the  complaint  referred  to  in  said  summons. 

Dated  at ,  this day  of ,  18 — . 


Sheriff's  fees,  $- 


,  Sheriff. 

By ,  Deputy  Sheriff. 


No.  3. 
Return  of  Service  of  Summons  on  Several  Defendants. 

Sheriff's  Office,  |  ^^ 

County  of ,  ) 

I   hereby  certify  that  I  received  the  within  summons  on  the 
day  of 18 — ,  and  personally  served  the  same  upon  the 


hereinafter  named  defendants  by  delivering  to  and  leaving  with 

each  of  said  defendants,  personally,  in  the  county  of ,  at  the 

time  set  opposite  their  names,  a  copy  of  said  summons ;    and 


425  sheriffs'  and  constables'  forms.      Nos.  4,  5 

that  the  copy  so  delivered  to  and  left  with ,  one  of  said  de- 
fendants, was  attached  to  a  copy  of  the  complaint  referred  to  in 
said  summons. 

Names  of  defendants  served, . 

Time  of  Service, . 

Dated  at ,  this day  of i 

Sheriff's  fees,  $ . 


-,  Sheriff. 
By ^  Deputy  Sheriff. 


No.  4. 

Returri  of  Service  of  Stcnmtojis  on  a  Defe7idant  and  not 

Served  as  to  Others. 

Sheriff's  Office,  |  ^_y 

County  of : ,  j 

I  hereby  certify  that  I  received  the  within  summons  on  the 

day  of ,   18 — ,  and  personally  served  the  same  upon 

John  Doe,  one  of  the  within  named  defendants,   by  delivering 
to  and  leaving  with  said  John  Doe,  personally,  in  the  county 

of ,  on  the day  of ,  18 — ,  attached  to  a  copy  of  the 

complaint  referred  to  in  said  summons. 

And  I  further  certify  that,  after  due  search  and  diligent  in- 
quiry, I  have  been  unable  to  find  the  within  named  Sally  Mag- 
uzelum  in county. 

Dated  at ,  this day  of ,  18 — . 

,  Sheriff. 

By ,  Deputy  Sheriff. 

Sheriff's  fees,  % . 

No.  5. 

Return  on  Summons  Served  on  a  Local  Corporation. 

Sheriff's  Office,  |  ^^ 

County  of ,  j 

I  hereby  certify  that  I  received  the  within  summons  on  the 
day  of ,  18 — ,  and  personally  served  the  same  upon  the 


Mud  Springs  Clay  Bank,  a  corporation,   by  delivering  to  and 
leaving   with   Simon   Sudds,  the   president   of  said   The   Mud 

Springs  Clay  Bank,  a  corporation,  in  the  county  of ,  on  the 

day  of ,  18 — ,  a  copy  of  said  summons;   and  that  the 


No.  6  sheriffs'  and  constables'  forms.  426 

copy  so  delivered  to  and  left  with  said  Simon  Sudds,  as  president 

of ,  said  defendant,  was  attached  to  a  copy  of  the  complaint 

referred  to  in  said  summons. 


Dated  at ,  this day  of ,  18 — . 

-,  Sheriff. 


Sheriff's  fees,  $- 


By ,  Deputy  Sheriff. 


Note. — §  411  of  the  Code  of  Civil  Procedure  pro- 
vides that  the  summons,  in  a  suit  against  a  corporation 
formed  under  the  laws  of  this  State,  must  be  delivered 
to  the  president  or  other  head  of  the  corporation, 
secretary,  cashier,  or  managing  agent  thereof.  The 
teller  of  a  bank  is  not  the  manacrino-  ao^ent.  If  the  suit 
is  against  a  foreign  corporation,  or  a  non-resident  joint 
stock  company  or  association,  the  summons  must  be 
delivered  to  the  manaofinof  or  business  accent,  cashier, 
or  secretary. 

No.  6. 

Return  on  Siunmons  Served  on  Defendant  of  Unsound 

Mind. 
Sheriff's  Office,  )  ^^ 

County  of ,  j 

I  hereby  certify  that  I  received  the  within  summons  on  the 
day  of ,    18 — ,   and   personally  served  the  same  upon 


John  Doe,  the  within  named    defendant,  by  delivering   to   and 

leaving  with  said  John  Doe,  personally,  in  the  county  of ,  on 

the day  of ,  18 — ,  a  copy  of  said  summons,   and  by 

delivering  to  and  leaving  with  Richard  Roe,  guardian  of  said 

John  Doe,  personally,  in  the  county  of ,  on  the day  of 

,  18 — ,  a  copy  of  said  summons  ;  and  that  the  copy  so  deliv- 
ered to  and  left  with  said  John  Doe  was  attached  to  a  copy  of 
the  complaint  referred  to  in  said  summons. 

Dated, ,  the day  of ,  18 — . 

,  Sheriff 

By ,  Deputy  Sheriff. 

Sheriff's  fees,  $ . 


427  sheriffs'  and  constables'  forms.      Nos.  7-9 

No.  7. 

Return  on  y^istice  s  Court  Suim?ions. 

I   hereby  certify  that  I   received  the  within  summons  on  the 
day  of ,  18 — ,  and  personally  served  the  same  by  de- 


livering to  and  leaving  with ,  the  defendant  named  herein, 

personally,  a  true  copy  of  this  summons,  attached  to  a  true  copy 

of  the  complaint  herein,  ,  in  township,  county, 

,  this day  of ,  18 — . 

Fees,  $ . 


Constable  of township, county, 


Deputy  Constable. 

No.  8. 

Return  on  yustice  s  Court  Summo7ts  when  County  Clerk' s 

Certificate  is  Attached. 

Sheriff's  Office,  |  ^^ 

County  of ,  j 

I  hereby  certify  that  I  received  the  within  summons  and  cer- 
tificate of  the  county  clerk  of  the  county  of ,  on  the day 

of ,  18 — ,  that  at  the  said  county  of ,  I  personally  served 

said  summons  on ,  the  within  named  defendant,  by  deliver- 
ing to  and  leaving  with  him,  personally,  a  copy  of  said  sum- 
mons and  clerk's  certificate  attached  thereto,  and  a  copy  of  the 
complaint  referred  to  in  said  summons. 

Dated ,  18—. 


Sheriff's  fees,  $- 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 


No.  9. 

Return  on  Summons  where  Defendant  cotdd  not  be  found. 
Sheriff's  Office, 


County  of ,  | 

I  hereby  certify  that  I  received  the  within  summons  on  the 

day  of ,  18 — ,  and  that  after  due  search  and  diligent  inquiry 


Nos.  lo,  II   sheriffs'  and  constables'  forms.   428 

I  have  been  unable  to  find  the  within  named  defendant,  Peter 

Jones,  in county. 

Dated  at this day  of ,  18 — . 


Sheriff's  fees,  $- 


,  Sheriff. 

By ,  Deputy  Sheriff. 


No.  10. 
Retur7i  by  Affidavit  of  Person  other  than    Officer  of 
Service  of  Summons . 
In  the  Superior  Court,  county  of ,  State  of . 

James  Boggs       ^ 

V.  \  Affidavit  of  Service  of  Summons. 

Richard  Roggs.  j 

Roothog  R.  Dye,  being  duly  sworn,  deposes  and  says :  That 
he  is,  and  at  all  times  mentioned  herein  was,  over  the  age  of 
eighteen  years,  and  not  a  party  to  the  within  action ;    that  he 

received  the  within  annexed  summons  on  the day  of , 

18 — ,  and  personally  served  the  same  upon  Richard  Roggs,  the 
within  named  defendant,  on  the day  of ,  18 — ,  by  de- 
livering to  and  leaving  with  said  Richard  Roggs,  said  defend- 
ant, personally,  in  the  county  of ,  a  copy  of  said  summons, 

attached  to  a  copy  of  the  complaint  referred  to  in  said  sum- 
mons. 
Subscribed  and  sworn   to^ 

before  me,  this day  \  Roothog  R.  Dye. 

of ,  18—.  3 

J.  Bangs, 

Notary  Public. 

No.  II. 

Return  on  Order  of  Arrest  on  Summons  in  Arrest  and 
Bail  in  Justice  s  Court. 

I  hereby  certify  that  I  have  served  the  above  order,  by  arrest- 
ing and  bringing  into  court  the  said  ,  this  day  of 

,  A.  D.  18 — ,  at o'clock  —  M.,  and  that  I   have  notified 

the  plaintiff  thereof 


Constable  of township,  county  of . 

gy ^  Deputy. 


429  sheriffs'  AND  constables'  FORMS.        NoS.  12-I4 


No.    12. 

Returti  on  Subpcena  in  Civil  Cases. 


ss. 


Sheriff's  Office, 
County  of  — 

I  hereby  certify  that  I  served  the  within  subpoena,  by  showing 
the  said  within  original  to  each  of  the  following  persons  named 
therein,  and  delivering  a  true  copy  thereof  to  each  of  the  said 

persons,  personally,  on  the day  of ,  a.  d.  18 — ,  at  the 

county  of ,  to  wit :     ,  who  did  not  demand  fees, 

and ,  who  demanded  and  received fees,  $ . 


Dated, 

Fees,  $ 

Service,  %- 
Mileage,  %- 
Total,  $ — 


-18- 


Sheriff. 


By- 


Deputy  Sheriff. 


No.  13. 

Return  of  Persoji  other  than  Sheriff,   on  Subpce?ia  in 

Civil  Cases. 
State  of , 


County  of 

— ,  of  said  county,  being  duly  sworn,  says  :  That  he  served 


the  within  subpoena,  by  showing  the  said  within  original  to  each 
of  the  following  persons  named  therein,  and  delivering  a  true 

copy  thereof  to  each  of  the  said  persons,  personally,  on  the 

day  of ,  A.  D.  18 — ,  at  the  said  county  of ,  to-wit:  , 

who  did  not  demand  fees,   and ,  who  demanded  and 

received fees,  $ . 

Subscribed  and  sworn  to  before  me 
this day  of ,  a.  d.  18 


■} 


No.  14. 
Return  on  Subpoena  in  Criminal  Case. 

County  of ,  j 

I  hereby  certify  that  I  served  the  within  subpcena,  on  the 

day  of ,  18 — ,  on  John  Doe,  Richard  Roe,  and  Jane  Jenks, 


State  of 


NOS.   15,    I  6         sheriffs'  AND  constables'  FORMS.  43O 

being-  llu'   witnesses  nanieil  in   said  subpoena,  at  the  county  of 

,  by  showing  the  original  to  said  witnesses,  personally,  and 

informing  them  of  the  contents  thereof. 
Dated, ,  iS— . 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 

No.  15. 

Return  on  Attachment  wJie^-e  Defendant  gives  Under- 

takuig. 

Sheriff's  Office,  | 

County  of .  j 

I  hereby  certify  that  I  received  the  within  writ  of  attachment 

on  the day  of ,  a.  d.  18 — ,  and  the  defendant  having 

given  me  a  bond,  as  required  in  said  writ,  in  an  amount  sufficient 
to  satisfy  the  demand,  besides  costs,  I  herewith  return  this  writ 
of  attachment  without  further  service. 

,  Sheriff 


By ,  Deputy  Sheriff. 

Dated, ,  a.  d.  18 — . 


No.  16. 

Return  on  Attachment  of  Personal  Property, 

Sheriff's  Office, 

County  of 


I, ,  sheriff  of  the  county  of  ,  do  hereby  certify  that 

under  and  by  virtue  of  the  within  and  hereunto  annexed  writ  of 

attachment,  by  me  received  on  the day  of ,  18 — ,  I  did, 

on  the day  of  18 — ,  attach   the   following   described 

personal  property  in  the  possession  of ,  viz.  : (descrip- 
tion of  property),  and  attached  the  same  by  taking  into  my 
custody  and  ])utting  a  keeper  in  charge. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

Dated, ,  18 — . 


431  sheriffs'  AND  constables'  FORMS.  No.    I'J 

No.    17. 

Return  on  Attachment  of  Real  Property  Standing  on  the 
Records  in  the  Name  of  a  Person  other  than  a 
Defendant. 

State  of ,  I 

County  of .  j 

I, ,  sheriff  of  the  county  of ,  hereby  certify  and  return 

that  I  received  the  hereunto  annexed  writ  of  attachment  on  the 

day  of ,  A.  D.  18 — ,  and,  by  virtue  of  the  same,  did,  on 

the day  of ,  a.  d.  18 — ,  attach  all  the  right,  title,  claim 

and  interest  of ,  defendant — ,  (or  either  of  them)  of,  in  and 

to  the  following  described  real  estate,  situated  in  said  county  of 

,  and  State  of ,  to  wit : (description  of  the  property). 

Said  real  estate  standing  on  the  records  of  said  county  in  the 
name  of  John  Doe,  was  attached  as  follows  :    By  filing  with  the 

recorder  of  said  county  of  ,  on   the day  of  ,  a.  d. 

18 — ,  a  copy  of  the  writ,  together  with  a  description  of  the  prop- 
erty attached,  and  a  notice  that  all  the  right,  title  and  interest  of 

,  said  defendant,  standing  on  the  records  of county  in 

the  name  of  John  Doe  is  attached  ;  and  by  leaving  a  similar  copy 
of  the  writ,  description  and  notice  with  an  occupant  of  the  prop- 
erty (or  as  the  case  may  be),  posting  a  similar  copy  of  the  writ, 
description  and  notice  in  a  conspicuous  place  on  the  property 
attached,  there  being  no  occupant;  and  by  delivering  to  and  leav- 
ing with  said  John  Doe  a  similar  copy  of  the  writ,  description  and 
notice. 

Dated, ,  this day  of a.  d.  18 — . 


Fees,  $- 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 


Note. — When  the  property  attached  stands  on  the 
records  in  the  name  of  a  person  other  than  a  defend- 
ant, a  copy  of  the  writ,  description  and  notice  must  be 


No.   1 8  sheriffs'  AND  constables'  FORMS.  432 

left  with  such  other  person  or  his  agent,  if  known  and 
within  the  county,  or  at  the  residence  of  either,  if  within 
the  county.  If  such  other  person  or  his  agent,  nor  the 
residence  of  either,  cannot  be  found,  the  return  should 
state  the  fact  that,  "After  due  search  and  diligent 
inquiry,  I  have  been  unable  to  find  said  John  Doe,  nor 

any  agent  of  his,  nor  any  residence  of  either  in 

county." 

No.  18. 

Return  on  Attachment  of  Real  Estate  Standing  on  the 
Records  in  Name  of  a  Defendaiit,  and  where  the 
Propeidy  has  an  Occupant. 

State  of ,  I  ^^ 

County  of ,  j 

I, ,  sheriff  of  the  county  of ,  hereby  certify  and  re- 
turn that  I  received  the  hereunto  annexed  writ  of  attachment  on 

the day  of ,  a.  d.  18 — ,  and,  by  virtue  of  the  same,  did 

on  the of ,  a.  d.  18—,  attach  all  the  right,  title,  claim, 

and  interest  of ,  defendant  (or  either  of  them),  of,  in  and  to 

the  following  described  real  estate,  situated  in  said  county  of 
,  and  State  of ,  to-wit :  (description  of  the  prop- 
erty). Said  real  estate  standing  on  the  records  of  said  county  in 
the  name  of ,  was  attached  as  follows  :  By  filing  with  the  re- 
corder of  said  county  of ,  on  the  day  of  ,   a.   d. 

18 — ,  a  copy  of  the  writ,  together  with  a  description  of  the 
property  attached,  and  a  notice  that  it  is  attached ;  and  by 
leaving  a  similar  copy  of  the  writ,  description,  and  notice  with 
an  occupant  of  the  property. 

Dated, ,  this day  of ,  a.  d.  18—. 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 

Fees,  $ . 


433         sheriffs'  and  constables'  forms.     Nos.  19,  20 

No.  19. 

Retw'n  on  Attachment  of  Real  Property  Standing  on 
the  Records  in  Name  of  a  Defendant,  and  where 
the  Property  is  not  Occupied. 


State  of- 


County  of 


-,} 


ss. 


I, ,  sheriff  of  the  county  of ,  hereby  certify  and  re- 
turn that  I  received  the  hereunto  annexed  writ  of  attachment  on 

the day  of ,  a.  d.  18 — ,  and,  by  virtue  of  the  same,  did 

on  the day  of ,  a.  d.   18 — ,  attach  all  the  right,   title, 

claim,  and  interest  of ,  defendant  (or  either  of  them),  of,  in 

and  to  the  following  described  real  estate,  situated  in  said  county 

of ,  and  State  of ,  to-wit:  (description  of  the  property.) 

Said  real  estate  standing  on  the  records  of  said  county  in  the 
name  of ,  was  attached  as  follows  :  By  filing  with  the  re- 
corder of  said  county  of ,  on  the  day  of ,  a.  d. 

18 — ,  a  copy  of  the  writ,  together  with  a  description  of  the  prop- 
erty attached,  and  a  notice  that  it  is  attached ;  and  by  posting  a 
similar  copy  of  the  writ,  description,  and  notice,  in  a  conspicuous 
place  on  the  property  attached,  there  being  no  occupant. 

Dated, ,  this day  of ,  a.  d.  18 — . 


Fees,  $- 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 


No.  20. 

Return  on   Garnishment  on  Bank. 

Sheriff's  Office,  | 

County  of .  j 

By  virtue  of  the  annexed  writ  of  attachment,  by  me  received 

on  the day  of  ,  18 — ,  I  have  duly  attached  all  moneys, 

goods,  effects,  debts  due  or  owing,  or  any  other  personal  property 
belonging  to  the  defendants  therein  named,  or  either  of  them,  in 
the  possession  or  under  the  control  of  The  First  National  Bank  of 
28 


No.  2 1         sheriffs'  and  constables'  forms.  434 

Tar  Flat,  by  delivering  to  and  leaving  with  Oliver  Twist,  presi- 
dent of  said  The  First  National  Bank  of  Tar  Flat,  personally,  in 

the  county  of  ,  on  the day  of ,  A.  D.  i8 — ,  a  copy 

of  said  writ  of  attachment  with  a  notice  in  writing  indorsed 
thereon  that  such  property  was  attached  by  virtue  of  said  writ, 
and  not  to  pay  over   or  transfer  the  same    to  anyone  but  the 

sheriff  of county,  or  some  one  legally  authorized  to  receive 

the  same.     I  also  demanded  a  statement  in  writing  of  the  amount 

of  the  same,  to  which  I  received  the  following  answer :  

(answer.) 

Dated, ,  this day  of ,  a.  d.  i8 — . 

,  Sheriff. 

By ,  Deputy  Sheriff. 


No.   2  1. 

Return   on   GarnisJiment  on  Individual  who  made  no 

Statement. 

Sheriff's  Office,  | 

County  of .  j 

By  virtue  of  the  annexed  writ  of  attachment,  by  me  received 

on  the day  of ,  i8 — ,  I   have   duly  attached  all  moneys, 

goods,  effects,  debts  due  or  owing,  or  any  other  personal  prop- 
erty belonging  to  the  defendants  therein  named,  or  either  of  them, 
in  the  possession  or  under  the  control  of  Jacob  Jones,  by  deliver- 
ing  to    and  leaving  with  said  Jacob  Jones,  personally,  in  the 

county  of ,  on  the day  of  ,  i8 — ,  a  copy  of  said 

writ  of  attachment  with  a  notice  in  writing  indorsed  thereon  that 
such  property  was  attached  by  virtue  of  said  writ,  and  not  to  pay 

over  or  transfer  the  same  to  anyone  but  the  sheriff  of  

county,  or  some  one  legally  authorized  to  receive  the  same.  I 
also  demanded  a  statement  in  writing  of  the  amount  of  the  same, 
to  which  said  Jacob  Jones  has  failed,  neglected  and  refused  to 
answer. 

Dated, ,  this day  of ,  a.  d.  i8 — . 

,  Sheriff. 

By ,  Deputy  Sheriff. 


435         sheriffs'  and  constables'  forms.     Nos.  22,  23 

No.  22. 
Return  on  GarnisJmient  on  Individual  with  Statement  of 

Garnishee. 
Sheriff's  Office,  | 

County  of ,  j 

By  virtue  of  the  annexed  writ  of  attachment,  by  me  received 

on  the day  of ,  18 — ,  I  have  duly  attached  all  moneys, 

goods,  effects,  debts  due  or  owing,  or  any  other  personal  prop- 
erty belonging  to  the  defendants  therein  named,  or  either  of 
them,  in  the  possession  or  under  the  control  of  John  Jenks,  by 
delivering  to  and  leaving  with  said  John  Jenks,  personally,  in  the 

county ,  on  the day  of ,  a.  d.  18 — ,  a  copy  of  said 

writ  of  attachment  with  a  notice  in  writing  indorsed  thereon  that 
such   property  was  attached  by  virtue  of  said  writ,  and   not  to 

pay  over  or  transfer  the  same  to  anyone  but  the  sheriff  of 

county,  or  some  one  legally  authorized  to  receive  the  same.  I 
also  demanded  a  statement  in  writing  of  the  amount  of  the  same, 
to  which  I  received  the  following  answer  : 


To  notice  of  garnishment  and  demand  for  a  statement  served 

on  me,  this day  of ,  a.  d.   18 — ,  by  the  sheriff  of 

county,  under  and  by  virtue  of  an issued  in  the  above  en- 
titled cause,  my  answer  is,  that  I  am indebted  to ,  said 

defendant,  in  the  sum  of dollars,  and  that  I  have  in  my  pos- 
session and  under  my  control personal  property  belonging 

to  said  defendant,  to-wit :  (description). 

(Signed),         . 

Dated, this day  of ,  A.  D.  18 — . 

,  Sheriff. 


By ,  Deputy  Sheriff, 

No.  23. 

Retuini  on  Execution  where  Personal  Property  has  been 

Levied  on  and  Sold. 
State  of ,  )  No. . 


County  of ,  j      '  Sheriff's  Return  on  Execution. 

I, ,  sheriff  of  the  county  of ,  do  hereby  certify  that 

under  and  by  virtue  of  the  within  and  hereunto  annexed  writ  of 


No.  24         sheriffs'  and  constables'  forms.  436 

execution,  by  me  received  on  the day  of ,  a.  d. 

18—,  I   did,  on  the day  of ,  A.  d.  18—,  levy  upon  the 

personal  property  hereinafter  described,  and  noticed  the  same 
for  sale  as  the  law  directs  (by  posting  written  notice  of  the  time 

and  place  of  sale),  particularly  describing  the  property,  for 

days  successively,  in  three  public  places  of  the  township  or  city 

where  said  property  was  sold,  and  on ,  the day  of , 

A  D,  18 — ,  at o'clock,  —  M.  of  said  day, (place  of  sale), 

in  said  county,  the  time  and  place  fixed  for  said  sale,  I  did  at- 
tend and  offered  for  sale  at  public  auction,  for  United  States  gold 

coin,  the  property  described  :  (description).     And  sold  the 

whole  of  the  same  in separate  parcels  to  various  purchasers 

for  the  sum  of dollars,  in  United  States  gold  coin;    said 

purchasers  being  the  highest  bidders,  and  said  sum  being  the 
highest  bid,  in  the  aggregate,  for  the  same ;  and  I  have  given 
such  purchaser, ,  a  certificate  of  said  sale.  (Here  state  satis- 
faction of  the  judgment,  or  otherwise,  as  indicated  in  form  of 
return  on  levy  and  sale  of  real  estate.) 

And  I  further  certify  that  I  deducted  from  the  said  sum  of  $ 

My  fees,  commission  and  expenses,  amounting  to  the  sum  of  $ 

Leaving  a  net  balance  of  -         .         -         -  $ 

Which  I  have  paid  to  plaintiff's  attorney,  whose  receipt  therefor 
is  hereto  attached. 

Dated, ,  this day  of ,  A.  D.  18—. 

Sheriff  of  the  county  of 


By ,  Deputy  Sheriff. 

No.  24. 

Return  on  Execution  where  Real  Estate  has  been  Levied 

on  and  Sold. 

State  of ,  )  No.  . 

County  of .  J  ^^'  Sheriff's  Return  on  Execution. 

I, ,  sheriff  of  the  county  of ,  do  hereby  certify  that 

under  and  by  virtue  of  the  within  and  hereunto  annexed  writ  of 

execution,  by  me  received  on  the day  of  ,  A.  D.  18 — , 

I  did,  on  the day  of ,  a.  d.  18—,  levy  upon  the  lands 

hereinafter  described,  and  noticed  the  same  for  sale  as  the  law 
directs  (by  posting  written  notice  of  the  time  and  place  of  sale, 


437  sheriffs'  and  constables'  forms.  No.  25 

particularly  describing  the  property,  for  twenty  days  successively 
in  three  public  places  of  the  township  or  city  where  said  property 
is  situated,  and  also  where  said  property  was  to  be  sold,  and 
publishing  a  copy  thereof  once  a  week  for  the  same  period  in  the 

,  a  newspaper  published  in  said  county  of ),  and  on , 

the  day  of ,  a.  d.  18 — ,  at o'clock  —  m.  of  said 

day,  in  front  of  the  court  house  door  of  said  county,  the  time  and 
place  fixed  for  said  sale,  I  did  attend  and  offered  for  sale  at  pub- 
lic auction,  for  United  States  gold  coin,  the  property  described : 

(description.)     And  sold  the  whole  of  the  same  to ,  for 

the  sum  of dollars,  in  United  States  gold  coin  ;   said 

being  the  highest  bidder,  and  said  sum  being  the  highest  bid  for 

the  same ;  and  I  have  given  said  purchaser, ,  a  certificate  of 

said  sale,  and  have  filed  a  duplicate  thereof  for  record  with  the 

recorder  of  said  county  of ;  and  I  herewith  return  said  writ 

fully  satisfied.  (If  the  proceeds  of  sale  do  not  satisfy  the  judg- 
ment, omit  the  last  clause  to  that  effect,  and  state  that,  after  due 
search  and  diligent  inquiry,  I  have  been  unable  to  find  any  other 
property  belonging  to  the  within  named  defendants,  or  either  of 

them,  not  exempt  from  execution,  in county,  out  of  which 

to  make  the  remainder  of  said  judgment,  or  any  part  of  such 
remainder,  and  herewith  return  said  writ  partly  satisfied,  to  wit : 

in  the  sum  of  $ .) 

And  I  further  certify  that  I  deducted  from  the  said  sum  of  $ 

My  fees,  commission  and  expenses,  amounting  to  the  sum  of  $ 

Leaving  a  net  balance  of  .         .         .         -  f, 

Which  I  have  paid  to  plaintiff's  attorney,  whose  receipt  therefor 
is  hereto  attached. 

Dated,  ,  this day  of ,  A.  d.  18 — . 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 


No.  25. 
Return  on  Foreclosure. 
Sheriff's  Office,  1  No. 


.} 


of  the  county  of .  j  Sheriff's  Return  on  Foreclosure. 

I,  ,  sheriff  of  the  county  of ,  do  hereby  certify:  That 

by  virtue   and  in  pursuance  of  the  annexed  order  of  sale  and 


No.  26    sheriffs'  and  constables'  forms.     438 

decree  of  foreclosure  and  sale,  I  advertised  the  property  described 

as  follows,  to  wit :  (description),  to  be  sold  by  me   in    front 

of  the  court  house  door  in  the  city  of ,  county  of ,  on 

the day  of ,  a.  d.  18 — ,  at  o'clock  m.;    that 

previous  to  said  sale  I  posted  written  notice,  particularly  describ- 
ing the  property,  for  twenty  days,  in  three  public  places  of  the 
township  or  city  where  the  property  is  situated,  and  also  where 
the  property  was  to  be  sold  ;  and  also  caused  due  and  legal 
written  notice  thereof  to  be  published  once  a  week  for  the  same 
period,  preceding  said  sale,  in  the ,  a newspaper  pub- 
lished in  the    county  of ,  and  that  on ,  the day  of 

,  18 — ,  the  day  on  which  said  premises  were  so  advertised 

to  be  sold  as  aforesaid,  I  attended  at  the  time  and  place  fixed  for 

said  sale,  and  exposed  the  said  premises  for  sale  in parcel — 

at  public  auction,  according  to  law,  to  the  highest  bidder  for  cash 

when  ,  being   the    highest   bidder   therefor,  the  said 

premises  were  struck  off  by  me  to  the  said ,  for  the  sum  of 

dollars,  in  United  States  gold  coin,  which  was  the  whole 

price  bid,  and  which  I  acknowledge  to  have  received  ;  and  that 
I  delivered  to  said  purchaser  a  certificate  of  said  sale,  and  filed  a 
duplicate  thereof  in  the  office  of  the  county  recorder  of  the  said 

county. 

And  I  further  certify  that  I  deducted  from  the  said  sum  of  $ 

My  fees,  commission  and  expenses,  amounting  to  the  sum  of  $ 

Leaving  a  net  balance  of 


Which  net  balance  I  have  paid  to  plaintiff's  attorney,  whose 
receipt  therefor  is  hereto  attached. 

(Here  state  the  satisfaction  of  judgment  or  amount  of  deficiency, 
as  the  case  may  be.) 

Dated  at ,  this day  of ,  18 — . 

Sheriff  of  the  county  of . 


J3y ^  Deputy  Sheriff. 

No.  26. 

Return   on    Replevin   when   Property   is   Delivered   to 

Plaintiff. 

State  of          ,  j^^  Sheriff's  Return  on  Replevin. 

County  01 , ) 

I  hereby  certify  and  return,  that  on  the day  of ,  18 — , 


439  sheriffs'  and  constables'  forms.  No.  27 

I  executed  the  order  indorsed  hereon,  for  deHvery  of  the  personal 
property  mentioned  in  the  within  affidavit,  by  taking  possession 
of  the  same  (or  all  thereof  to  be  found  in  my  county),  to-wit: 

(description  of  property  taken),  and  at  the  same  time  I 

delivered  to  the  defendant,  Jonathan  Wild,  a  copy  of  the  within 
affidavit  and  order,  and  undertaking  duly  approved  by  me,  and 
defendant  having  failed  to  except  to  the  surety  therein,  and  also 
having  omitted  to  require  a  return  of  said  property,  and  no 
other  person  than  the  defendant  having  made  claim  thereto, 
I  did  at  the  expiration  of  the  time  prescribed  by  the  statute  for 
seeking  such  delivery  and  making  such  claim,  to-wit:  on  the 

day  of ,  18 — ,  deliver  the  property  so  taken  to  the 

plaintiff,  as  by  said  order  I  am  commanded. 

Fees,  $ . 

Dated, , ,  18—. 


Sheriff  of county. 

No.  27. 

Rehirn  on  Replevin  zvhen  Property  is  Re-delivered  to 

Defendant. 

State  of          ,  I  ^^  Sheriff's  Return  on  Replevin. 

County  ol ,  j 

I  hereby  certify  and  return,  that  on  the day  of ,  18 — , 

I  executed  the  order  indorsed  hereon,  for  delivery  of  the  per- 
sonal property  mentioned  in  the  within  affidavit,  by  taking  pos- 
session of  the  same  (or  all  thereof  to  be  found  in  my  county), 

to-wit:  (description  of  property  taken),  and  at  the  same 

time  I  delivered  to  the  defendant,  Jonathan  Wild,  a  copy  of  the 
within  affidavit  and  order  and  undertaking,  duly  approved  by 
me,  and  the  defendant  not  having  excepted  to  such  surety 
claimed  the  re-delivery  of  the  said  property  by  giving  me  an 
undertaking  in  due  form,  and  the  sureties  therein  having  justi- 
fied, and  no  other  person  having  made  claim  to  said  property  in 
due  form  of  law,  I  re-delivered  the  said  property  to  the  defendant. 

Fees,  $ . 

Dated, , ,  18 — . 

Sheriff  of county. 


Nos.  28,  29     sheriffs'  and  constables'  forms.        440 

No.  28. 
Retujni  on  Writ  of  RestihUioji. 

Sheriff's  Office,  )  ^^ 

County  of .  | 

I, sheriff  of  the   county  of  ,  do  hereby  certify  that 

under  and    by  virtue   of  the  within  writ  of  restitution,  by  me 

received  on  the  day  of ,  18 — ,  I  served  the  same  on 

the  day  of ,  18 — ,  by  placing  the  within  named  

in  quiet  and  peaceable  possession  of  the  lands  and  premises 
therein  described.  I  further  certify  that  after  due  search  and 
diligent  inquiry  I  have  been  unable  to  find  any  property  belong- 
ing to  the  within  named  defendant,  in county,  not  exempt 

from  execution,  out  of  which  to  make  the  within  money  judgment, 
or  any  part  thereof,  and  I  herewith  return  said  writ  without 
further  service,  fully  satisfied  as  to  the  plaintiff's  possession  of 
the  lands  and  premises  therein  described,  and  wholly  unsatisfied 
as  to  said  money  judgment. 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 

Dated, ,  this day  of ,  18 — . 

Note. — If  any  money  is  made  by  levy  and  sale,  or 
otherwise,  the  return  as  to  the  money  judgment  will  be 
the  same  as  in  return  on  writs  of  execution.  If  the 
officer  put  the  plaintiff's  agent  in  possession,  the  return 
should  show  that  the  writ  was  served  "  by  placing  the 
within  named  plaintiff,  by  his  agent,  John  Roe,  in  quiet 
and  peaceable  possession,"  etc. 

No.  29. 

Retur7i  on  Writ  of  Restitution  not  Served  by  reason  of 

Strangers  ijt  Possession. 

Sheriff's  Office,  |  ^^ 

County  of .  j 

I, ,  sheriff  of  the  county  of ,  hereby  certify  and  return 

that  I  received  the  within  hereunto  annexed  writ  of  restitution  on 
the day  of ,  18 — ,  and   that  on  the  day  of , 


441         sheriffs'  and  constables'  forms.     Nos.  30,  31 

18 — ,  I  proceeded  to  the  premises  therein  described  for  the 
purpose  of  serving  said  writ,  and  that  neither  H.  F.  Larabee,  the 
within  named  defendant,  nor  any  agent  of  said  Larabee,  was  then 
or  has  been  since,  in  the  possession  of  said  premises  ;  and  that  said 
premises  were  in  the  possession  of  and  occupied  by  L.  H.  Brown, 
who  then  and  there  claimed  possession  thereof  as  heir  of  George 
Brown,  deceased,  owner  in  fee  simple  of  said  premises,  and  also 
claimed  possession  of  said  premises  as  executor  of  the  last  will  of 
George  Brown,  deceased,  owner  in  fee  simple  of  said  premises  ; 
and  said  L.  H.  Brown,  as  such  executor,  claimed  possession  and 
title  to  the  said  premises  by  title  superior  to  and  entirely  inde- 
pendent of  any  claim  or  title  or  possession  of  plaintiff  or  defend- 
ant named  in  said  writ.  I  further  certify  that,  after  due  search 
and  diligent  inquiry,  I  have  been  unable  to  find  any  property 
belonging  to  the  within  named  defendant,  in  Alameda  county, 
not  exempt  from  execution,  out  of  which  to  make  the  money 
judgment  in  said  writ,  or  any  part  thereof,  and  I  herewith  return 
said  writ  without  further  service,  wholly  unsatisfied. 


Sheriff  of  the  county  of  ■ 
Dated, ,  18—. 


No.  30. 

Return  on  Writ  of  Assistance. 

The  same  form  of  return  may  be  used  as  in  writ  of  restitution. 
There  is  no  money  judgment  in  the  writ  of  assistance,  and  no 
return  required  except  as  to  putting  plaintiff  in  possession. 

No.  31. 

Return  on  Writ  of  Certiorari. 

Sheriff's  Office,         ) 
County  of ,  | 

I  hereby  certify  that  I  received  the  within  writ  on  the 

day  of ,  18 — ,  and  served  the  same  on  the day  of , 


18 — ,  by  delivering  to  and  leaving  with   Hezekiah  Lorgs,  per- 
sonally, in county,  a  copy  of  the  within  writ. 


Sheriff  of  the  county  of , 

By ,  Deputy  Sheriff, 

Dated, ,  18—. 


Nos.  32-34     sheriffs'  and  constables'  forms.        442 

No.  32. 

Return  on  Citation. 

I, ,  sherift"  of  the  county  of ,  do  hereby  certify  that  I 

served  the  within  citation  on  the  within  named ,  by  deliver- 
ing to  ,  personally,  a  copy  thereof,  on  the day  of , 

A.  D.  18 — ,  at  said  county. 

Dated, ,  18—. 

Fees,  $ .  ,  Sheriff. 

By ,  Deputy  Sheriff. 

No.  33. 
Search  Warrant. 


County  of . 

The  People  of  the  State  of — —  to  any  sheriff,  constable,  marshal, 
or  policeman  in  the  county  of : 

Proof,  by  affidavit,  having  been  this  day  made  before  me  by 
(naming  every  person  whose  affidavit  has  been  taken),  that 
(stating  the  grounds  of  the  application,  according  to  §  1525  of 
the  Penal  Code,  or,  if  the  affidavit  be  not  positive,  that  there  is 
probable  cause  for  believing  that — stating  the  ground  of  the  ap- 
plication in  the  same  manner),  you  are  therefore  commanded, 
in  the  daytime  (or  at  any  time  of  the  day  or  night,  as  the  case 
may  be,  according  to  §  1533  of  the  Penal  Code),  to  make  imme- 
diate search  on  the  person  of  C.  D.  (or  in  the  house  situated , 

describing  it,  or  any  other  place  to  be  searched,  with  reasonable 
particularity,  as  the  case  may  be),  for  the  following  property: 
(describing  it  with  reasonable  particularity) ;  and  if  you  find  the 
same,  or  any  part  thereof,  to  bring  it  forthwith  before  me  at 
(stating  the  place). 

Given   under  my  hand,  and  dated  this day  of A.  D. 

18—. 

E.  F.,  Justice  of  the  Peace  (or  as  the  case  may  be). 

No.  34. 

Inventory  with  Search  Warrant. 

I,  ,  the  officer  by  whom  the  warrant  was  executed,  do 

swear  that  the  above  inventory  contains  a  true  and  detailed  ac- 
count of  all  the  property  taken  by  me  on  the  warrant. 


443        sheriffs'  and  constables'  forms.      Nos.  35-37 

No.  35. 
Return  on  Search  Warrant. 
County  of . 

I  hereby  certify  that  I  have  served  the  within  warrant,  and  have 
the  property  described  therein  in  the  place  designated,  in  the 

possession  of ,  and  having  cause  to  believe  that  said 

stole  said  property,  I  have  arrested  him,  and  have  him  with  the 
goods  here  in  court. 

No.  z^. 

Return  on  Warrant  of  Arrest. 

I  hereby  certify  that  I  received  the  within  warrant  on  the 

day  of ,  18 — ,  and  served  the  same  by  arresting  the  within 

named  defendant  on  the  day  of ,  18— ,  and  bringing 

him  into  court  this day  of ,  18 — . 


No.  Zl- 

Return  on  Service  of  Injunctio7t  on  Individual. 

Sheriff's  Office,         )  ^^ 
County  of .  ] 

I  hereby  certify  that  I  received  the  annexed  order  of  injunction 

on  the day  of ,  18 — ,  and  personally  served  the  same 

on  the day  of ,  18 — ,  upon  Silas  Snooks,  defendant,  by 

delivering  to  said  Silas  Snooks,  personally,  in  the  county  of 
Alameda,  a  copy  of  said  order  of  injunction  and  of  the  summons, 
and  a  copy  of  the  verified  complaint  in  said  action  therein  named, 
at  the  same  time  showing  him  the  annexed  original  order  of 
injunction  and  informing  him  of  the  contents  thereof 

Dated, ,  18 — . 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 

Sheriff's  fees,  $ . 


No.  38         sheriffs'  and  constables'  forms.  444 

No.  38. 

Retur7t  on  Service  of  Injunction  on  Board  of  Super- 
visor's. 

Sheriff's  Office,  \  ^^ 

County  of .  j 

I  hereby  certify  that  I  received  the  annexed  writ  of  injunction 

on  the day  of ,  18 — ,  and  duly  served  the  same  on  said 

day  of ,  18 — ,  by  personally  delivering  to  and  leaving 

with  the  following  named  persons,  as  members  of  the  Board  of 

Supervisors  of  the  county  of ,  in  the  said  county  of ,  on 

said  day,  a  copy  of  said  writ  of  injunction  attached  to  a  copy  of 
the  complaint  mentioned  in  said  writ  of  injunction,  which  said 
copy  of  the  complaint  had  attached  to  it  the  verification  to  the 
original  complaint,  and  at  the  same  time  showing  to  each  of  said 
persons  the  writ  of  injunction  annexed  hereto,  and  stating  the 

contents  thereof  to  each  of  said  persons  :  (names  of  persons 

served.) 

And  I  further  certify  that,  at  the  time  of  said  service,  said  per- 
sons were  members  of  the  Board  of  Supervisors  of  the  county  of 
,  the  defendant  named  in  said  writ  of  injunction  and  com- 
plaint, and  that  said  persons  were  so  served  as  members  of  said 
board. 

And  I  further  certify  that  I  served  the  said  writ  of  injunction  on 

the  defendant,  "  The  county  of ,"  on  the day  of , 

18 — ,  by  personally  delivering  to  and  leaving  with  John  F.  Smith, 

the  president  of  the  Board  of  Supervisors  of  said  county  of , 

a  copy  of  said  writ  of  injunction  attached  to  a  copy  of  the  com- 
plaint mentioned  in  said  writ  of  injunction,  which  said  copy  of  the 
complaint  had  attached  to  it  a  copy  of  the  verification  to  the 
original  complaint,  and  at  the  same  time  showing  to  said  Smith, 
as  president  of  said  board,  the  writ  of  injunction  annexed  hereto, 
and  stating  the  contents  thereof  to  him. 


Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 

Dated,  ,  18—. 


445        sheriffs'  and  constables'  forms.     Nos.  39,  40 

No.  39. 

Rettirn  on  Venire  for  yurors. 

State  of ,  I 

County  of ,  ) 

I  hereby  certify  that  I   received  the  within  and  hereunto  an- 
nexed venire  for jurors,  on  the  day  of  ,   a.   d. 

18 — ,  and  by  virtue  of  the  same  have  personally  summoned  the 
hereinafter  named   persons   to  be  and  appear  at  the  time  and 

place  therein  named,  to  act  as jurors.     I  also  certify  that 

they  were  summoned  at  the  time  and  in  the  manner  set  opposite 
their  respective  names,  viz. :  by  leaving  with  them  personally, 
when  they  could  be  found,  the  notice  required  by  statute,  and 
when  they  could  not  be  found,  by  leaving  such  notice  at  their 
respective  places  of  residence  with  some  person  of  suitable  age. 

Names.      |      Manner  of  Service.     |     Time  of  Service.    |     No.  Miles. 
Dated, ,  this day  of ,  18 — . 


Sheriff  of  the  county  of , 

By ,  Deputy  Sheriff. 

No.  40. 
Order  for  Levy  and  Sale  of  Personal  Property. 
State  of  — 


-J 


County  of 
In  the Court,  in  and  for county. 

Order  for  Levy  and  Sale  of  Personal  Property. 


To ,  sheriff  of county  : 

You  are  hereby  instructed  to  levy  upon  and  sell,  by  virtue  of 
the  accompanying  writ,  in  the  above  entitled  suit,  the  following- 
described  personal  property,  belonging  to  the  defendant  herein  : 
(description.) 

Attorney  for  Plaintiff. 
Dated, ,  18—. 


Nos.  41,  42     sheriffs'  and  constables'  forms.         446 

No.  41. 
Order  for  Levy  and  Sale  of  Real  Estate. 


State  of  ■ 


-.} 


County  of  ■ 
In  the Court,  in  and  for county. 


V     \     Order  for  Levy  and  Sale  of  Real  Estate. 

-J 


To ,  sheriff  of county  : 

You  are  hereby  instructed  to  levy  upon  and  sell,  by  virtue  of 
the  accompanying  writ,  in  the  above  entitled  suit,  the  following 

described  property,  standing  on  the  records  of county  in 

the  name  of ,  (description.) 


Attorney  for  plaintiff. 


Dated,  18- 


No,  42. 

Notice  of  Levy  on  Real  Estate  under  Execution. 

[to  attach  to  copy  of  writ.] 


State  of 


County  of 


|-  i-j-. 


Notice  is  hereby  given  that,  under  and  by  virtue  of  a  writ  of 

execution,  issued  out  of  the  Superior  Court  of  the State  of 

,  of  which  the  annexed  writ  is  a  true  copy,  I  have  this  day 

attached  and  levied  upon  all  the  right,  title,  claim  and  interest  of 

,  defendant — ,  or  either  of  them,  of,  in  and  to  the  following 

described  real  estate,  standing  on  the  records  of  county  in 

the  name  of ,   and  particularly  described  as  follows  :  

(description  of  property.) 

Sheriff  of  the  county  of . 


By ,  Deputy  Sheriff. 

Dated,  ,  18—. 


447         sheriffs'  and  constables'  forms.     Nos.  43,  44 

No.  43. 
Notice  of  Attachment  of  Real  Property. 

[to  attach  to  copy  of  writ.] 

State  of , 

ss. 


County  of- 


-.} 


Notice  is  hereby  given  that,  under  and  by  virtue  of  a  writ  of 

attachment,  issued  out  of  the  Superior  Court  of  the ,  State  of 

,  of  which  the  annexed  writ  is  a  true  copy,  I  have  this  day 

attached  all  the  right,  title,  claim  and  interest  of ,  defend- 
ant— ,  or  either  of  them,  of,  in  and  to  the  following  described 

real  estate,  standing  on  the  records  of county  in  the  name  of 

,  and  particularly  described  as  follows  :    (description  of 

property). 


Dated, 


Sheriff  of  the  county  of . 

By ,  Deputy  Sherift". 


No.  44. 
Order  for  Attachment  of  Personal  Property. 

State  of ,  I 

County  of ,  J 

In  the Court,  in  and  for county. 

^ 

V.         I      Order  for  Attachment  of  Personal  Property. 


To ,  sheriff  of county  : 

You  are  hereby  instructed  to  attach,  by  virtue  of  the  accom- 
panying writ,  in  the  above  entitled  suit,  the  following  described 
property,  and  place  a  keeper  in  charge  at  plaintiff's  expense, 
viz.:  (description). 


Attorney  for  Plaintiff. 
Dated,  ,  i8— . 


Nos.  45-47     sheriffs'  and  constables'  forms.        448 

No.  45. 
Order  for  Attachneyit  of  Real  Estate. 


State  of  • 


-,} 


County  of  ■ 
In  the Court,  in  and  for county. 

Order  for  Attachment  of  Real  Estate. 


To ,  sheriff  of county  : 

You  are  hereby  instructed  to  attach,  by  virtue  of  the  accom- 
panying writ,  in  the  above  entitled  suit,  the  following  described 

property,  standing  on  the  records  of county  in  the  name  of 

(description).  , 

Attorney  for  Plaintiff. 

Dated, ,  18—. 

No.  46. 

Order  for  Release  of  Attachment, 


To ,  sheriff  of county  : 

Sir :  You  are  hereby  directed  and  ordered  to  release  all  the 
property  attached  by  you  in  the  above  entided  action,  and  return 
the  writ  of  attachment  to  the  court  from  which  it  was  issued. 

,  18—.  , 

Plaintiff's  Attorney. 

No.  47. 

Notice  of  Attachment  of  Stocks. 

Sheriff's  Office,  ) 

County  of .  j 


To  The  Happy  Clam  Mining  Company, 

and  Julius  Jenkins,  secretary  of  said  company: 
You  will  please  take  notice  that  all  stocks  or  shares,  or  interest 
in  stocks  or  shares,  of  The  Happy  Clam   Mining  Company,  in 
your  possession  or  under  your  control,  belonging  to  the  within 


449         sheriffs'  and  constabi.es'  forms.     Nos.  48,  49 

defendant,  are  attached  by  virtue  of  a  writ,  of  which  this  is  a  copy, 
and  you  are  notified  not  to  transfer  or  deHver  over  the  same  to 

anyone  but  the  sheriff  of  county.     I  also  require  of  you  a 

statement  in  writing  of  the  amount  of  the  same. 

Sheriff  of  the  county  of . 


By ,  Deputy  Sheriff. 

No.  48. 
General  Notice  of  Attachment  of  Personal  Property. 

Sheriff's  Office,  j 

County  of ,  ,  18 — .  j 

To  Mr. 

You  will  please  take  notice  that  all  moneys,  goods,  credits, 
effects,  debts  due  or  owing,  or  any  personal  property  in  your 
possession  or  under  your  control,  belonging  to  the  within  defend- 
ant— ,  or  either  of  them,  are  attached  by  virtue  of  a  writ  of  which 
this  is  a  copy,  and  you  are  notified  not  to  pay  over  or  transfer  the 

same  to  anyone   but  the  sheriff  of county,  or  some   one 

legally  authorized  to  receive  the  same,  but  conduct  yourself  in 
accordance  with  the  statutes  made  and  provided.  I  also  require 
of  you  a  statement  in  writing  of  the  amount  of  the  same. 

,  Sheriff 

By ,  Deputy  Sheriff. 


No.  49. 

Answer  to  Garnishment. 

In  the  ■ Court  of  the  county  of ,  State  of- 

1 


Plaintiff      | 
V.  \     Answer  to  Garnishment. 


Defendant 
To  notice  of  garnishment  and  demand  for  a  statement  served 

on  me  this day  of ,  a.  d.  18 — ,  by  the  sheriff  of 

county,   under  and  by  virtue  of  an issued   in   the   above 

entitled  cause,  my  answer  is,  that  I   am  indebted  to , 

29 


No.  50        sheriffs'  and  constables'  forms.  450 

said  defendant — ,  in  the  sum  of dollars,  and  that  I   have   in 

my   possession  and  under  my  control  personal  property 

belong-ing  to  said  defendant,  to  wit :  (property). 


Signed, - 


Dated, ,  li 


No.  50. 

Undertaking  to  Prevent  Attachment. 

In  the  Superior  Court  of  the county  of of  the  State  of 

,  Plaintiff,      ] 

,  Defendant,  ) 


Whereas,  the  above  named  plaintiff  has  commenced  an  action 
in  the  aforesaid  court,  against  the  above  named  defendant,  for 

the  recovery  of dollars, ;  and  whereas,   an  attachment 

has  been  issued,  directed  to ,  sheriff  of  the  county  of , 

and  placed  in  his  hands  for  execution,  whereby  he  is  commanded 
to  attach  and  safely  keep  all  the  property  of  the  said  defendant 
within  his  county  not  exempt  from  execution,  or  so  much  thereof 
as  might  be  sufficient  to  satisfy  the  plaintiff's  demand  therein 
stated,  in  conformity  to  the  complaint,  in  the  sum  of dol- 
lars,   ,  unless  the  defendant  give  him  security  by  the  under- 
taking of  two  sufficient  sureties,  in  an  amount  sufficient  to  satisfy 
said  demand,  beside  costs,  in  which  case  to  take  such  under- 
taking. 

And  whereas,  the  said  defendant  is  desirous  of  giving  the  un- 
dertaking mentioned  in  the  said  writ : 

Now,  therefore,  we,  the  undersigned,  residents  of  the ,  in 

consideration  of  the  premises  and  to  prevent  the  levy  of  said 
attachment,  do  hereby  jointly  and  severally   undertake,    in   the 

sum  of dollars,  ,  and  promise  to  the  effect  that  if  the 

plaintiff  shall  recover  judgment  in  said  action,  we  will  pay  to 
the  plaintiff  upon  demand  the  amount  of  said  judgment,  to- 
gether with  the  costs,  not  exceeding  in  all  the  said  sum  of 

dollars. 

Dated  at ,  the day  of 18 — . 

,  [Seal.] 

,  [Seal.] 

,  [Seal.] 


451  sheriffs'  and  constables'  forms.         No.  51 

State  of , 


County  of-  ^     ' 

—  and ,  whose  names  are  subscribed  as  sureties  to  the 


above  undertaking,  being  severally  duly  sworn,  each  for  himself 

deposes  and  says  :    That  he  is  a  resident  and holder  of  the 

,  county  of ,  and  is  worth  the  sum  in  the  said  under- 
taking specified  as  the  penalty  thereof,  over  and  above  all  his 
debts  and  liabilities,  exclusive  of  property  exempt  from  execu- 
tion. 


Subscribed  and  sworn 
this- 


and  sworn  to  before  me,  \ 
day  of ,  A.  D.  18 — .     I 


No.  51. 

U^idei^taking  on  Release  of  Attachment. 
In  the  Superior  Court  of  the county ,  of  the  State  of 

1 

Plaintiff      | 

\ 


Defendant 
Whereas,  the  above  named  plaintiff —  commenced  an  action  in 

the  Superior  Court  of  the county  of  ,  of  the  State  of 

,  against  the  above  named  defendant — ,  claiming  that  there 

was  due  to  said  plaintiff —  from  said  defendant —  the  sum  of 


dollars,  or  thereabouts,  and  thereupon  an  attachment  issued 
against  the  property  of  said  defendant —  as  security  for  the  satisfac- 
tion of  any  judgment  that  might  be  recovered  therein,  and  certain 
property  and  effects  of  the  said  defendant —  have  been  attached 
and  seized  by  the  sheriff  of  said  county,  under  and  by  virtue  of 
said  writ. 

And  whereas,  the  said  defendant desirous  of  having  said 

property  released  from  attachment. 

Now,  therefore,  we,  the  undersigned,  residents  and hold- 
ers  in  the  county  of ,  in  consideration  of  the  premises,  and 

also  in  consideration  of  the  release  from  said  attachment  of  the  prop- 
erty so  attached,  as  above  mentioned,   do  hereby  jointly  and 


No.   52  SHERIP^FS'  AND  CONSTABLES'   FORMS.  452 

severally  undertake,  in  the  sum  of — —  dollars,  and  promise  that 
in  case  the  plaintiff —  recover  judgment  in  the  action,  defendant — 
will,  on  demand,  pay  to  plaintiff —  the  amount  of  whatever  judg- 
ment may  be  recovered  in  said  action,  together  with  the  percent- 
age, interest  and  costs  ;  the  same  to  be  paid  in  United  States 
gold  coin,  if  so  required  by  the  terms  of  the  judgment. 

Dated  at ,  the day  | 

of ,  18—.  j 


County  of  • 


[Seal.] 
[Seal.] 
[Seal.] 


and ,  whose  names  are  subscribed  as  sureties  to  the 

above  undertaking,  being  severally  duly  sworn,  each  for  himself, 

deposes  and  says  :  That  he  is  a  resident  and holder  of  the 

county  of ,  and   is  worth  the  sum   in   the  said  undertaking 

specified,  as  the  penalty  thereof,  over  and  above  all  his  debts  and 
liabilities,  exclusive  of  property  exempt  from  execution. 

Sworn  to  before  m 
day  of ,  A.  D.  li 


Sworn  to  before  me,  this ) 


No.  52. 
Receipts  to  Sheriff. 

.  Oakland,  ,  18—. 

Received  from  Charles  McCleverty,  sheriff  of  Alameda  county, 
-,  in  United  States  gold  coin,  being  the  amount  of  sale  of 


real  estate  in  the  case  of ,  Superior  Court,  county  of  ■ 

after  deducting  sheriff's  costs  and  disbursements,  amounting  to 


Plaintiff's  Attorney. 

% .  Oakland,  18 — . 

Received  from  Charles  McCleverty,  sheriff  of  Alameda  county, 

,eo  dollars,   in  United  States  gold  coin,   being  the  amount 

of  judgment,  interest,  costs,  etc. ,  due  plaintiff,  ,  in  the  case 

of V.  ,  Superior  Court,  county  of . 


Plaintiff's  Attorney. 


453  sheriffs'  and  constables'  forms.         No.  53 

No.  53. 

Indemnity  Bond  in  Attachmeitt. 

Know  all  Men  by  these  Presents  : 

That  we,  ,  of  the  county  of ,  as  principal,  and ,  of 

the  said  county,  and ,  of  the  said  county,  ,  as  sureties, 

are  held  and  firmly  bound  unto  ,  sheriff  of  the  county  of 

,  in  the  sum  of dollars,  gold  coin  of  the  United  States 

of  America,  to  be  paid  to  the  said  sheriff,  or  his  certain  attorney, 
executors,  administrators,  or  assigns,  for  which  payment  well  and 
truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  and 
administrators,  jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals,  . 

Dated,  ,  the day  of ,  A.  D.  18 — ,  . 

Whereas,  under  and  by  virtue  of  a  writ  of  attachment  issued 

out  of  the  Superior  Court  of  the  county  of ,  of  the 

State  of ,  in  the  action  of ,  plaintiff,  against ,  de- 
fendant, directed  and  delivered  to  said ,  sheriff  of  the  county 

of ,  the  said  sheriff  was  commanded  to  attach  and  safely  keep 

all  the  property  of  such  defendant ,  within  his  said  county, 

not  exempt  from  execution,  or  so  much  thereof  as  may  be  suffi- 
cient to  satisfy  the  plaintiff's  demand  ;  amounting  to dol- 
lars, as  therein  alleged,  and  the  said  sheriff  did  thereupon 
attach  the  following  described  goods  and  chattels  :  (de- 
scription of  goods). 

And  whereas,  upon  the  taking  of  the  said  goods  and  chattels 
by  virtue  of  the  said  writ,  claimed  the  said  goods  and  chat- 
tels as  h —  property,  . 

And  whereas,  the  said  plaintiff,  hereby  expressly  waiving  a  trial 

by  a  sheriff's  jury  of  the  right  of  property,    require    of 

said  sheriff  that  he  shall  retain  said  property  under  such  attach- 
ment and  in  his  custody. 

Now  therefore,  the  condition  of  this  obligation  is  such,  that  if 

the  said ,  as  principal,  and and as  sureties,   their 

heirs,  executors,  and  administrators,  shall  well  and  truly  indem- 
nify and  save  harmless  him,  the  said  sheriff,  his  heirs,  executors, 
administrators,  and  assigns,  of  and  from  all  and  any  damages, 
expenses,  costs,  and  charges,  including  all  counsel  fees  for  which 
he,  the  said  sheriff,  his  heirs,  executors,  administrators,  or  as- 
signs, may  incur  in  consequence  of  the  legal  enforcement  of  the 
payment  of  the  penalty  of  this  bond  ;    and  against  all   loss  and 


No.  53    sheriffs'  and  constables'  forms.     454 

liability  which  he,  the  said  sherift",  his  heirs,  executors,  adminis- 
trators, or  assigns,  shall  sustain  or  in  anywise  be  put  to,  for  or 
by  reason  of  the  attachment,  seizing,  levying,  taking,  or  retention 
by  him,  the  said  sheriff,  in  his  custody,  under  said  attachment  of 
the  property  claimed  as  aforesaid. 

And  that  it  may  be  lawful  for  the  said  sherilT,  his  heirs,  execu- 
tors, administrators,  or  assigns,  to  bring  suit  against  the  prin- 
cipal and  sureties  hereto,  or  either  of  them,  or  their  or  either 
of  their  executors,  administrators,  or  assigns,  immediately  upon 
the  rendition  of  any  judgment  against  the  plaintiff  in  said  cause 
or  against  the  said  sheriff,  his  heirs,  executors,  administrators,  or 
assigns.  And  that  said  sheriff  shall  not  be  required  first  to  pay 
the  said  judgment  in  order  to  entitle  him  or  his  legal  representa- 
tives to  maintain  such  suit  and  recover  judgment  thereon — then 
the  above  obligation  to  be  void,  otherwise  to  remain  in  full  force 
and  virtue. 

In  case  suit  or  suits  at  law  or  in  equity,  or  any  proceeding  to 
be  brought  against  the  said ,  sheriff,  or  against  him  indi- 
vidually, or  against  him  in  any  capacity,  jointly  with  other  per- 
son or  persons,  or  alone,  for,  or  on  account  of  the  property  so 

levied  upon,   or   for   the   conversion  of  the  same,  the  said 

shall  and  may  select  his  own  counsel  to  act  in  any  such  matter 
with  the  attorney  or  attorneys  of  the  principal  in  this  bond 
named,  and  the  reasonable  fees  of  such  counsel  shall  be  a 
charge  against  said  principal  and  be  secured  by  this  bond.  So 
likewise  in  case  of  suit  or  any  event  requiring  the  advice  of 
counsel  in  and  about  the  custody  or  detention  of  said  property, 

the  said shall  be  at  liberty  to  consult  counsel  of  his  own 

choice,  and  the  reasonable  fee  of  such  counsel  shall  be  secured 
by  this  bond.  In  addition,  and  as  cumulative  to  remedy  by 
suit  against  the  sureties  hereto,  it  is  and  shall  be  the  right  and 

privilege  of  the  said ,  immediately  upon  the  rendition  of  any 

judgment  against  the  plaintiff  in  this  cause  or  against  the  said 
,  to  apply  in  the  court  wherein  such  judgment  was  ren- 
dered, and  upon  filing  this  bond,  to  have  judgment  thereon 
rendered  in  his  favor  against  the  principal  and  sureties  hereon 
for  the  full  amount  of  any  such  judgment,   including  all  costs, 

damages,  expenses,  and  counsel  fees  as  the  said may  have 

incurred  in  the  said  action,  as  well  as  counsel  fees  for  advice, 
and  expense  of  keeping  or  storing  property  kept  hereinunder. 
And  the  principal  and  sureties  hereto  expressly  waive  any  notice 


455  sheriffs'  and  constables'  forms.         No.  54 

of  any  such  application,  and  consent  to  the  entry  of  such  judg- 
ment, consenting  and  stipulating  also  that  the  estimate  of  said 

as   to   the  amount  of  expenses,  counsel  fees,  storage,  and 

the  like,  shall  be  final,  binding,  and  conclusive.      The   remedies 
herein  provided  shall  not  exclude  any  other  legal  relief,  but  are 

cumulative  to  the  other  rights,  legal  and  equitable,  of  said . 

In    case  of  any  recovery  against  said growing  out  of  the 

seizure  or  detention  of  the  property  herein  mentioned,  then  in 

any  proceeding  by  said ,  upon  this  bond,  any  defense  based 

upon  illegality  of  the  consideration  hereof,  or  the  unlawfulness 

of  the  act  or  acts  of  said ,  as  sheriff,  or  otherwise,  is  hereby 

expressly  waived. 

Sealed  and  delivered  in  presence  of ,  [Seal.] 

,  [Seal.] 

,  [Seal.] 

City  of ,  county  of ,  .yj-. 

and ,  whose  names  are  subscribed  as  the  sureties  to 

the  above  undertaking,  being  severally  duly  sworn,  each  for  him- 
self, deposes  and  says  :    That  he  is  a  resident  and holder  of 

the  county  of ,  and  is  worth  the  sum  in  the  said  undertaking 

specified,  as  the  penalty  thereof,  over  and  above  all  his  debts  and 
liabilities,  exclusive  of  property  exempt  from  execution. 

Sworn  to  before  me,  this 

day  of ,  A.  D.  18 — . 


No.  54. 

Indemnity  Bond  Under  Execntion. 

Know  all  Men  by  these  Presents : 

That  we,  of  the  county  of ,  as  principal,  and ,  of 

the  said  county,  and ,  of  the  said  county, ,  as  sureties, 

are  held  and  firmly  bound  unto ,  sheriff  of  the  county  of , 

in  the  sum  of  dollars,  gold  coin  of  the  United    States   of 

America,  to  be  paid  to  the  said  sheriff,  or  his  certain  attorney, 
executors,  administrators  or  assigns,  for  which  payment  well  and 
truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and 
administrators,  jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals . 


Dated, ,  the day  of ,  a.  d.  \\ 


No.  54         sheriffs'  and  constables'  forms.  456 

Whereas,  under  and  by  virtue  of  a  writ  of  execution,  issued  out 

of  the  Superior  Court  of  the county  of ,  of  the  State  of 

,  in    the   action  of  ,  plaintiff,  against   ,   defendant, 

directed  and  dehvered  to  said ,  sheriff  of  the  county  of  ■ 


the  said  sheriff  was  commanded  to  satisfy  the  judgment,  with 
interest,  out  of  the  personal  property  of  such  defendant  within  his 
county,  not  exempt  from  execution,  and  if  sufficient  personal  prop- 
erty could  not  be  found,  then  out  of  the  real  property  belonging 

to  him  on  the  day  when  the  said  judgment  was  docketed, or  at 

any  time  subsequently,  the  said  sheriff  did  thereupon  levy  upon  and 
take  into  his  possession  the  following  described  goods  and  chattels, 
to  wit  :  (description  of  goods). 

And  whereas,  upon  the  taking  of  the  said  goods  and  chattels  by 

virtue  of  the  said  writ,  claimed  the  said  goods  and  chattels 

as    h —  property, . 

And  whereas,  the  said  plaintiff  hereby  expressly  waiving  a  trial 

by  a  sheriff's  jury  of  the  right  of  property, require  of  said 

sheriff  that  he  shall  retain  said  property,  under  such  levy,  and  sell 
the  same,  and  apply  the  proceeds  thereof  to  the  satisfaction  of  said 
judgment,  interest  and  costs  of  suit. 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if 

the  said  ,  as  principal,  and  and ,  as  sureties,  their 

heirs,  executors  and  administrators,  shall  well  and  truly  indemnify 
and  save  harmless  him,  the  said  sheriff,  his  heirs,  executors,  admin- 
istrators and  assigns,  of  and  from  all  and  any  damages,  expenses, 
costs  and  charges,  including  all  counsel  fees  for  which  he,  the 
said  sheriff,  his  heirs,  executors,  administrators,  or  assigns,  may 
incur  in  consequence  of  the  legal  enforcement  of  the  payment  of  the 
penalty  of  this  bond  ;  and  against  all  loss  and  liability  which  he,  the 
said  sheriff,  his  heirs,  executors,  administrators,  or  assigns,  shall  sus- 
tain or  in  anywise  be  put  to,  for  or  by  reason  of  the  attachment, 
seizing,  levying,  taking,  retention  in  his  custody,  or  selling  by  him, 
the  said  sheriff,  under  said  writ,  of  the  property  claimed  as  afore- 
said. 

And  that  it  may  be  lawful  for  the  said  sheriff,  his  heirs,  execu- 
tors, administrators,  or  assigns,  to  bring  suit  against  the  principal 
and  sureties  hereto,  or  either  of  them,  or  their  or  either  of  their 
executors,  administrators,  or  assigns,  immediately  upon  the  rendi- 
tion of  any  judgment  against  the  plaintiff  in  such  cause,  or  against 
the  said  sheriff,  his  heirs,  executors,  administrators,  or  assigns. 
And  that  said  sheriff  shall   not  be  required   first  to  pay  the  said 


457     sheriffs'  and  constables'  forms.    No.  54 

judgment  in  order  to  entitle  him  or  his  legal  representatives  to 
maintain  such  suit  and  recover  judgment  thereon — then  the  above 
obligation  to  be  void,  otherwise  to  remain  in  full  force  and 
virtue. 

In  case  suit  or  suits  at  law,  or  in  equity,  or  any  proceeding  to 
be  brought  against  the  said ,  sheriff,  or  against  him  individ- 
ually, or  against  him  in  any  capacity,  jointly  with  other  person  or 
persons,  or  alone,  for  or  on  accountof  the  property  so  levied  upon, 

or  for  the  conversion  of  the  same,  the  said shall  and  may 

select  his  own  counsel  to  act  in  any  such  matter  with  the  attorney 
or  attorneys  of  the  principal  in  this  bond  named,  and  the  reason- 
able fees  of  such  counsel  shall  be  a  charge  against  said  principal 
and  be  secured  by  this  bond.  So,  likewise,  in  case  of  suit  or  any 
event  requiring  the  advice  of  counsel  in  and  about  the  custody  or 
detention  of  said  property,  the  said shall  beat  liberty  to  con- 
sult counsel  of  his  own  choice,  and  the  reasonable  fee  of  such 
counsel  shall  be  secured  by  this  bond.  In  addition,  and  as  cumu- 
lative to  remedy  by  suit  against  the  sureties  hereto,  it  is  and  shall 

be  the  right  and  privilege  of  the  said ,  immediately,  upon  the 

rendition  of  any  judgment  against  the  plaintiff  in  this  cause,  or 

against  the  said ,  to  apply  in  the  court  wherein  said  judgment 

was  rendered,  and,  upon  filing  this  bond,  to  have  judgment  thereon 
rendered  in  his  favor,  against  the  principal  and  sureties  hereon, 
for  the  full  amount  of  any  such  judgment,   including  all  costs, 

damages,  expenses  and  counsel   fees  as  the  said  may  have 

incurred  in  the  said  action,  as  well  as  counsel  fees  for  advice,  and 
expense  of  keeping  or  storing  property  kept  hereinunder.  And 
the  principal  and  sureties  hereto  expressly  waive  any  notice  of 
any  such  application  and  consent  to  the  entry  of  such  judgment, 

consenting  and  stipulating  also  that  the  estimate  of  said as  to 

the  amount  of  expenses,  counsel  fees,  storage  and  the  like,  shall 
be  final,  binding  and  conclusive.  The  remedies  herein  provided 
shall  not  exclude  any  other  legal  relief,  but  are  cumulative  to  the 

other  rights,  legal  and  equitable,  of  said  .     In  case  of  any 

recovery  against  said  ,  growing  out  of  the  seizure  or  deten- 
tion of  the  property  herein  mentioned,  then,  in  any  proceeding 

by  said upon  this  bond,  any  defense  based  upon  illegality  of 

the  consideration  hereof,  or  the  unlawfulness  of  the  act  or  acts 

of  said ,  as  sheriff,  or  otherwise,  is  hereby  expressly  waived. 

Sealed  and  delivered  in  presence  of  [Seal.] 

[Seal] 

[Seal.] 


No.  55         sheriffs'  and  constables'  forms.  458 

City  of ,  county  of ,  ss. 

and ,  whose  names  are  subscribed  as  the  sureties  to 

the  above  undertaking,  being  severally  duly  sworn,  each  for  him- 
self, deposes  and  says  :   That  he  is  a  resident  and holder  of 

the  county  of ,  and  is  worth  the  sum  in  the  said  undertaking 

specified,  as  the  penalty  thereof,  over  and  above  all  his  debts  and 
liabilities,  exclusive  of  property  exempt  from  execution. 

Sworn  to  before  me,  this ) 

day  of ,  A.  D.  18 — .  I  

Note. — In  cases  where  the  right  of  the  claimant  to 
the  property  is  tried  before  a  sheriff's  jury,  the  bond, 
instead  of  reciting  that  the  plaintiff  waives  a  trial, 
should  state  that,  "a  jury  was  summoned  by  the  said 
sheriff  to  try  such  claim,  which  said  jury  have,  by  their 
finding,  decided,"  etc.;  and  if  the  verdict  is  in  favor  of  the 
claimant,  that  "the  said  plaintiff,  notwithstanding  such 
finding,  requires  that  said  sheriff  shall  retain  said  prop- 
erty," etc. 

No.  55. 

Notice  of  Sale  of  Personal  Propeidy. 

Sheriff's  Sale. 

Under  and  by  virtue  of  an  execution  issued  out  of  the  Superior 
Court  of  the county  of ,  State  of ,  and  to  me  di- 
rected and  delivered  for  a  judgment  rendered  in  said  court,  on  the 

day  of ,  A.  D.  18 — ,  in  favor  of ,  and  against , 

for  the  sum  of  % ,  in  ,  together  with   costs  of  suit  and 

interest,  I  have  levied  on  all  the  right,  title,  claim  and  interest  of 

said  defendant,  of,  in  and  to  the  following  property,  to-wit  : 

(description). 

Notice  is  hereby  given  that  on the day  of ,  a.  d. 

18 — ,  at  o'clock  M.,    of  said  clay,    I   will  sell  all    the 

right,  title,  and  interest  of  said ,  or  either  of  them,  in  and  to 

the  above  described  property,  or  so  much  thereof  as  may  be 
necessary  to  satisfy  plaintiff"' s  claim,  besides  all  costs,  interest, 
and  accruing  costs. 

The  sale  will  take  place  at ,  at  public  auction,  for in 

hand,  to  highest  and  best  bidder. 

Dated,  ,  this day  of ,  a.  d.  18 — . 

,  Sheriff. 


By ,  Deputy  Sheriff. 


459         sheriffs'  and  constables'  forms.     Nos.  56,  57 

No.  56. 

Notice  of  Sale  of  Real  Estate  under  ExectUion. 

V.         \  Sheriff's  Sale. 

)  No.  . 

By  virtue  of  an  execution  issued  out  of  the  Superior  Court  of 

the  county  of ,   of  the  State  of  ,    wherein  , 

plaintiff,    and  ,   defendant,    upon  a  judgment  rendered   the 

day  of ,  A.  D.  18 — ,  for  the  sum  of dollars,  United 

States  gold  coin,  besides  costs  and  interest,  I  have  this  day  levied 
upon  all  the  right,  tide,  claim,  and  interest  of  said  defendant, 

,  of,  in  and  to  the  following  described  real  estate,  to-wit : 

(description). 

Public  notice  is  hereby  given  that  I  will,  on the day 

of ,  A.  D.  18 ,  at o'clock  A.  M.  of  said  day,  in  front 

of  the  court-house  door  of  the  county  of ,  sell  at  public  auc- 
tion, for  United  States  gold  coin,  all  the  right,  tide,  claim,  and 

interest  of  said  defendant, ,  of,  in  and  to  the  above  described 

property,  or  so  much  thereof  as  may  be  necessary  to  raise  suffi- 
cient to  satisfy  said  judgment,  with  interest  and  costs,  etc. ,  to  the 

highest  and  best  bidder. 
^  ,  Sheriff. 

Dated,  ,  18—. 

No.  57. 

Notice  of  Foreclosure  Sale. 

Sheriff's  Sale. 


V. 


No. 


Order  of  Sale  and  Decree  of  Foreclosure  and  Sale. 

Under  and  by  virtue  of  an  order  of  sale  and  decree  of  fore- 
closure and  sale,  issued  out  of  the  Superior  Court  of  the 

county  of ,  of  the  State  of ,  on  the day  of , 

A.  D.  18 — ,  in  the  above  entitled  action,  wherein ,  the  above 

named  plaintiff,  obtained  a  judgment  and  decree  of  foreclosure 

and  sale  against ,  defendant,  on  the day  of ,  A.  D. 

18 — ,   for  the  sum  of dollars,   in  United  States   gold 

coin,  besides  interest,  costs  and  counsel   fees  ,  which  said 


No.  58         sheriffs'  and  constables'  forms.  460 

decree  was,  on  the day  of ,  A.  D.  18 — ,  recorded  in  judg- 
ment book of  said  court,  at  page  ,  I  am  commanded  t.o 

sell  all  th —  certain  lot,  piece,  or  parcels  of  land,  situate,  lying  and 

being  in  county  of ,   State  of  ,  and  bounded  and 

described  as  follows  :  (description). 

Public  notice  is  hereby  given  that,  on  ,  the  day  of 

,  A.  D.  18 — ,  at o'clock  A.  M.  of  that  day,  in  front  of  the 

court-house  door  of  the  county  of  ,  I  will,  in  obedience  to 

said  order  of  sale  and  decree  of  foreclosure  and  sale,  sell  the  above 
described  property,  or  so  much  thereof  as  may  be  necessary  to 
satisfy  said  judgment,  with  interest  and  costs,  etc.,  to  the  highest 
and  best  bidder,  for  gold  coin  of  the  United  States. 

Dated, ,  18—. 

,  Sheriff. 


No.  58. 
Certificate  of  Sale  of  Stock. 

I, ,  sheriff  of  the  county  of ,  State  of ,  do  hereby 

certify  that,  under  and  by  virtue  of  the  final  judgment  and  decree 

of  the  Superior  Court  of  the  county  of ,  State  of ,  in  a 

certain  action  lately  pending  in  said  court,  at  the  suit  of , 

plaintiff,  and  against ,  defendants,  duly  certified  to  me  under 

the  seal  of  said  Superior  Court  on  the day  of ,  18 — , 

and  to  me,  as  such  sheriff,  duly  directed  and  delivered,  whereby 
I  was  commanded  to  sell  the  hereunto  annexed  certificate  of  stock 
according  to  law,  and  apply  the  proceeds  of  such  sale  towards 
the  satisfaction  of  the  judgment  in  said  action,  amounting  to  the 

sum  of  % ,  in  United  States  gold  coin,  with  interest  and  costs 

of  suit  ;  on  the day  of ,  18 — ,  at o'clock  — .  M.,  at 

the  court-house  door,  in  the  city ,  in  the  said  county  of , 

I  duly  sold  at  public  auction,  according  to  law,  and  after  due  and 

legal   notice,  to ,  who  made  the  highest  bid  therefor,  at  such 

sale,  for  the  sum  of  % ,  in  United  States  gold  coin,  which  was 

the  whole  price  paid  for,  the  hereunto  annexed  certificate  of  stock 
in  said  order  of  sale  described. 

Given  under  my  hand,  this day  of ,  18 — . 


Sheriff  of  the  county  of 


461         sheriffs'  and  constables'  forms.     Nos.  59,  60 

No.  59. 

Certificate  of  Sale  of  Real  Estate  under  Execution. 

In  the  Superior  Court  of  the county  of  ,  State  of . 


Plaintiff 

V. 


Sheriff's  Certificate  of  Sale  of  Real  Estate 
on  Execution. 


Defendant 

County  of ,  .yj. 

I,  sheriff  of  the  county  of ,  do  hereby  certify  that  by 

virtue  of  an  execution  in  the  above  case,  tested  the day  of 

,  18 — ,  by  which  I  was  commanded  to  make  the  amount  of 

dollars,  to  satisfy  the  judgment  in  this   action,  with 

costs  and  interest  thereon,  out  of  the  personal  property  of , 


the  above  defendant — ,  and  if  sufficient  personal  property  could 
not  be  found,  then  out  of  the  real  property  belonging  to  the  said 
,  on  the day  of ,  A.  D.  18 — ,  or  at  any  time  there- 
after, as  by  the  said  writ,  reference  being  thereunto  had,  more 
fully  appears  ;  I  have  levied  on  and  this  day  sold  at  public  auc- 
tion, according  to  the  statute  in  such  cases  made  and  provided, 

to ,  who  was  the  highest  bidder,  for  the  sum  of dollars, 

,  which  was  the  whole  price  paid  by  him  for  the  right,  title, 

and  interest  of  said  defendant — ,  of,  in  and  to  the  real  estate  de- 
scribed as  follows,  to-wit :    (description). 

That  the  price  of  each  distinct  lot  and  parcel  was  as  follows  : 

,  Lot  B.,  in  block  2,  was  sold  to for  $50.00,  lawful  money 

of  the  United  States  ;  Lot  C,  in  block  4,  was  sold  to  for 

$70.00,  lawful  money  of  the  United  States. 

And  that  the  said  real  estate  is  subject  to  redemption,  in , 

pursuant  to  the  statute  in  such  cases  made  and  provided. 

Dated, ,  this day  of ,  a.  d.  18 — . 

,  Sheriff. 

By ,  Deputy  Sheriff. 

No.  60. 

Certificate  of  Sale  under  Foreclosure. 

I, ,  sheriff  of  the  county  of ,  State  of ,  do  hereby 

certify  that,  under  and  by  virtue  of  the  final  judgment  and  decree 


No.  6 1         sheriffs'  and  constables'  forms.  462 

of  the  Superior  Court  of  the county  of ,  of  the  State  of 

,  in  a  certain  action  lately  pending  in  said  Superior  Court,  at 

the  suit  of ,  plaintiff — ,  and  against ,  defendant,  duly  cer- 
tified to  me  under  the  seal  of  said  Superior  Court,  the day 

of ,  A.  D.  18 — ,  and  an  order  of  sale  thereon,  issued  to  me  as 

such  sheriff,  duly  directed  and  delivered,  whereby  I  was  com- 
manded to  sell  the  property  hereinafter  described,  according  to 
law,  and  apply  the  proceeds  of  such  sale  towards  the  satisfaction 
of  the  judgment  in  said  action,  amounting  to  the  sum  of dol- 
lars, in  United  States  gold  coin,  with  interest,  counsel  fees,  taxes 

and  costs  of  suit,  amounting  in  all  to  the  sum  of on  the 

day  of ,  A.  D.  18 — ,  at  o'clock,  M.,  at  the  court- 
house door,  in  the  city  of ,  in  the  said  county  of ,  I  duly 

sold  at  public  auction,  according  to  law,  and  after  due  and  legal 

notice,  to ,  who  made  the  highest  bid  therefor  at  such  sale, 

for  the  sum  of  dollars,  in  United  States  gold  coin,  , 

which  was  the  whole  price  paid,  the  real  estate  in  said  order  of 

sale,  described  as  follows,  to  wit :    (description  of  property 

sold). 

And  I  do  hereby  further  certify  that  the  said  property  was  sold 

in lots or  parcels,  as  follows  : 

Lot  I,  in  block  5,  was  sold  to for  $1000.00,  U.  S.  gold  coin. 

Lot  2,  in  block  5,  was  sold  to for    $800.00,  U.  S.  gold  coin. 

That  the  said  sum  of dollars,  in  United  States  gold  coin,  was 

the  highest  bid  made,  and  the  whole  price  paid  therefor,  and  that 
the  same  is  subject  to  redemption,  in  United  States  gold  coin, 
pursuant  to  the  statute  in  such  cases  made  and  provided. 

Given  under  my  hand,  this day  of ,  a.  d.  18 — . 

,  Sheriff. 


By ,  Deputy  Sheriff. 

No.  61. 

Deed  under  Execution. 

This  indenture,  made  this day  of ,  a.  d.  18 — ,  between 

sheriff  of  the  county  of ,  of  the  first  part,  and ,  of 


the county  of ,  and  State  of ,  of  the  second  part : 

Whereas,  by  virtue  of  a  writ  of  execution  issued  out  of,  and 

under  the  seal  of,  the  Superior  Court of  the  State  of  , 

tested  the day  of ,  a.  d.  18 — ,  upon  a  judgment  recov- 


463  sheriffs'  and  constables'  forms.         No.  61 

ered  in  said  court  on  the day  of ,  A.  D.  18 — ,  in  favor  of 

,  and  against ,  to  the  said  sheriff  directed  and  deUvered, 

commanding  him  that  of  the  personal  property  of  the  said  judg- 
ment debtor  in  his  county,  he  should  cause  to  be  made  certain 
moneys  in  the  said  writ  specified,  and  if  sufficient  personal  prop- 
erty of  the  said  judgment  debtor  could  not  be  found,  that  then  he 
should  cause  the  amount  of  said  judgment  to  be  made  of  the  lands, 

tenements  and  real  property  belonging  to  him  on  the day  of 

,  A.  D.  18 — ,  or  at  any  time  afterwards. 

And,  whereas,  because  sufficient  personal  property  of  the  said 
judgment  debtor  could  not  be  found,  whereof  he,  the  said  sheriff, 
could  cause  to  be  made  the  moneys  specified  in  said  writ,  he,  the 
said  sheriff,  did,  in  obedience  to  said  command,  levy  on,  take 
and  seize  all  the  estate,  right,  title  and  interest  which  the  said 
judgment  debtor  so  had  of,  in  and  to  the  lands,  tenements,  real 
estate  and  premises,  hereinafter  particularly  set  forth  and  de- 
scribed,   with  the  appurtenances,  and  did,  on  the  day  of 

,  A.  D.  18 — ,  sell  the  said  premises,  at  public  vendue,  at  the 

court-house  door,  in  the  city  of ,  county  of ,  between  the 

hours  of  nine  in  the  morning  and  five  in  the  afternoon  of  that  day, 

namely  :  at  o'clock  —  m.,  after  first  having  given  notice  of 

the  time  and  place  of  such  sale,  by  advertising  the  same  accord- 
ing to  law  ;  at  which  sale,  the  said  premises  were  struck  off  and 

sold  to ,for  the  sum  of ,  United  States  gold  coin,  he,  the 

said ,  being  the  highest  bidder,  and  that  being  the  highest 

sum  bidden,  and  the  whole  price  paid  for  the  same. 

And,  whereas,  the  said  sheriff,  after  receiving  from  said  pur- 
chaser the  said  sum  of  money  so  bidden  as  aforesaid,  gave  to  him 
such  certificate  as  is  by  law  directed  to  be  given,  and  filed  in  the 
office  of  the  recorder  of  the  county  of a  duplicate  of  such  cer- 
tificate. 

And,  whereas,  six  months  after  such  sale  have  expired  without 
any  redemption  of  the  said  premises  having  been  made. 

Now  this  indenture  witnesseth,  that  I ,  the  sheriff  aforesaid, 

and  party  hereto  of  the  first  part,  by  virtue  of  said  writ,  and  in 
pursuance  of  the  statute  in  such  case  made  and  provided,  for  and 
in  consideration  of  the  sum  of  money  above  mentioned,  to  him 
in  hand  paid,  as  aforesaid,  by  the  said  party  of  the  second  part, 
the  receipt  whereof  is  hereby  acknowledged,  hath  granted,  bar- 
gained, sold,  conveyed  and  confirmed,  and  by  these  presents  doth 
grant,  bargain,  sell,  convey  and  confirm  unto  the  said ,  his 


No.  62         sheriffs'  and  constables'  forms.  464 

heirs  and  assigns,  all  the  estate,  right,  title  and  interest  of 


the  said ,  which had  on  the  said day  of ,  a.  d 

18 — ,  or  at  any  time  afterwards,  or  now of,  in  and  to  all  the 

following  described  premises,  viz  :  (description),  together 

with  all  and  singular  the  hereditaments  and  appurtenances  there- 
unto belonging,  or  in  anywise  appertaining,  to  have  and  to  hold 
the  said  above  mentioned  and  described  premises,  with  the  appur- 
tenances, unto  the  said  ,  heirs  and  assigns  forever,  as  fully 

and  absolutely  as  he,  the  sheriff  aforesaid,  can,  may,  or  ought  to, 
by  virtue  of  the  said  writ,  and  of  the  statute  in  such  case  made 
and  provided,  grant,  bargain,  sell,  release,  assign,  convey  and 
confirm  the  same. 

In  witness  whereof,  the  said  sheriff,  the  party  of  the  first  part 
to  these  presents,  hath  hereunto  set  his  hand  and  seal  the  day  and 
year  first  above  written. 
Sealed  and  delivered  in  the  presence ") 

o^  [  [Seal.] 

Sheriff  of  the  county  of — - 


No.  62. 
Deed  under  Foreclosure. 

This  indenture,  made  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and ,  between ,  sheriff 

of  the  county  of ,  State  of ,  the  party  of  the  first  part, 

and ,  the  part —  of  the  second  part,  witnesseth  : 

Whereas,  in  and  by  a  certain  judgment  or  decree,  made  and 

entered  by  the  Superior  Court  of  the county  of ,  of  the 

State  of ,   on  the  day  of a.  d.  18 — ,  in  a  certain 

action  then  pending  in  said  court,  wherein was  plaintiff,  and 

was  defendant,  and  of  which  said  judgment  or  decree  a  cer- 
tified copy,  with  an  order  of  sale  from  said  court,  was  delivered 
to  said  party  of  the  first  part,  as  such  sheriff,  for  execution,  it 
was  among  other  things  ordered,  adjudged,  and  decreed,  that  all 
and  singular  the  mortgaged  premises  described  in  the  complaint 
in  said  action,  and  specifically  described  in  said  judgment  or 
decree,  should  be  sold  at  public  auction  by  the  sheriff  of  the 
said  county  of  ,  in  the  manner  required  by  law,  and  ac- 
cording to  the  course  and  practice  of  said  court  ;  that  such  sale 
be  made ,  in  the  said  county  of ,  between  the  hours  of 


465  sheriffs'  and  constables'  forms.         No.  62 

nine  o'clock  in  the  forenoon  and  five  o'clock  in  the  afternoon  on 
such  day  as  the  said  sheriff  should  appoint,  that  any  of  the  par- 
ties to  said  action  might  become  the  purchaser  at  such  sale  ;  and 
that  said  sheriff  should  execute  the  usual  certificates  and  deeds 
to  the  purchaser  or  purchasers,  as  required  by  law : 

And  whereas,  the  said  sheriff  did  at  the  hour  of o'clock 

— .  M.,  on  the day  of ,  a.  d.  18 — ,  after  due  public  no- 
tice had  been  given,  as  required  by  the  laws  of  this  State,  and 
the  course  and  practice  of  said  court,  duly  sell  at  public  auction  in 

the  said  county  of ,  agreeably  to  said  judgment  or  decree,  and 

the  provisions  of  law,  the  premises  in  the  said  decree  or  judgment 
mentioned,  at  which  sale  the  premises  in  said  judgment  or  de- 
cree, and  hereinafter  described,  were  fairly  struck  off  to  the  said 

,  the  said  part hereto  of  the  second  part,  for  the  sum 

of dollars, being  the  highest  bidder ,  and  that  being 

the  highest  sum  bid  for  the  same : 

And  whereas,  the  said thereupon   paid  to  the  said  sheriff 

the  sum  of  money  so  bid  by : 

And  whereas,  the  said  sheriff  thereupon  made  and  issued  the 
usual  certificate  in  duplicate  of  the  said  sale  in  due  form  of  law, 

and  delivered  one  thereof  to  the  said  purchaser, ,  and  caused 

the  other  to  be  filed  in  the  office  of  the  county  recorder  of  said 

county  of : 

And  whereas,  more  than  six  months  have  elapsed  since  the 
date  of  said  sale,  and  no  redemption  has  been  made  of  the  prem- 
ises so  sold  as  aforesaid,  by  or  on  behalf  of  the  said  judgment 

debtor,  the  said ,  or  by  or  on  behalf  of  any  other  person. 

(Recital  of  any  assignment  that  may  have  been  made.) 

Now  this  indenture  witnesseth  :  That  the  said  party  of  the  first 
part,  the  said  sherift",  in  order  to  carry  into  effect  the  sale  so  made 
by  him  as  aforesaid,  in  pursuance  of  said  judgment  or  decree,  and 
in  conformity  to  the  statute  in  such  case  made  and  provided,  and 

also  in  consideration  of  the  premises  and  of  the  said  sum  of 

dollars, so  bid  and  paid  to  him  by  the  said  purchaser, , 

the  said ,  the  receipt  whereof  is  hereby  acknowledged,  has 

granted,  bargained,  sold,  and  conveyed,  and  by  these  presents 
does  grant,  bargain,  sell,  and  convey  unto  the  said  part —  of  the 
second  part,  and  to heirs  and  assigns  forever,  all  th —  cer- 
tain lot — ,  piece — ,  or  parcel —  of  land  situate,  lying,  and  being 
in  the  said  county  of ,  State  of ,  and  bounded  and  par- 
ticularly described  as  follows,  to-wit :  (description).  Together 
30 


No.  63    sheriffs'  and  constables'  forms.     466 

with  all  and  singular  the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  anywise  appertaining,  and 
the  reversion  and  reversions,  remainder  and  remainders,  rents, 
issues,  and  profits  thereof ;  and  also  all  the  estate,  right,  title, 
and  interest,  property,  possession,  claim,  and  demand  whatso- 
ever, as  well  in  law  as  in  equity,  of  the  said  party  of  the  first 

part,  and  of  said  defendant, ,  of,  in  and  to  the  said  premises, 

and  every  part  and  parcel  thereof. 

To  have  and  to  hold,  all  and  singular,  the  said  premises  hereby 
conveyed,  or  intended  so  to  be,  together  with  the  appurtenances, 

unto  the  said  part —  of  the  second  part, heirs  and  assigns, 

to their  own  proper  use,  benefit,  and  behoof  forever. 

In  witness  whereof,  the  said  party  of  the  first  part  to  these 
presents,  has  hereunto  set  his  hand  and  seal  the  day  and  year  first 

above  written.  ,  [Seal.] 

Sheriff  of  the  county  of ,  State  of . 

No.  63. 

Monthly  Statement  of  Fees  to  Auditor. 
State  of , 


County  of 


} 


I, ,  of  said  county,  hereby  certify  that  the  total  amount  of 

fees  due  from  me  to  the  county  treasury  of  said  county,  for  the 

month  of  ,  18 — ,  as  shown  by  the  fee  book  in  my  office,  is 

dollars  ($ ,00)  •  

State  of ,  1  _ 


County  of .  j 

I, ,  do  swear  that  the  fee  book  in  my  office  contains  a  true 

statement,  in  detail,  of  all  fees  and  compensation  of  every  kind 
and  nature,  for  official  services  rendered  by  me,  my  deputies  and 

assistants,  for  the  month  of ,  A.  D.  18 — ,  and  that  said  fee 

book  shows  a  full  amount  received  or  chargeable  in  said  month 
and  since  my  last  monthly  payment ;  and  neither  myself,  nor,  to 
my  knowledge  or  belief,  any  of  my  deputies  or  assistants,  have 
rendered  any  official  service,  except  for  the  county,  which  is  not 
fully  set  out  in  said  fee  book,  and  that  the  foregoing  statement 
thereof  is  true  and  correct. 

Subscribed  and  sworn  to  before  me,   )  

this day  of ,  1 8 — .  ]  


Deputy  County  Treasurer. 


467       sheriffs'  and  constables'  forms.      Nos.  64-66 

No.  64. 

Semi-Yearly  Statement  of  Fees  to  Auditor. 

State  of ,  ) 

ss. 


County  of 


.,} 


I  hereby  certify  that  the  amount  of  fees  earned,  collected  or 

chargeable  by  me,  as ,  for  the  six  months  ending ,  18 — , 

is dollars. 

$ .  Witness  my  hand  this day  of ,  18 — . 


Sheriff  of  the  county  of . 

State  of ,  ) 

County  of ,  j      ' 

,  being  duly  sworn,  says  that  the  above  statement  is  correct. 

Subscribed  and  sworn  to  before  ") 
me,  this day  of ,  iJ 


I  Sheriff  of  the  county  of . 

No.  65. 

Monthly  Statement  of  yailor  to  Cotinty  Auditor. 

List  of  Prisoners  Confined  in  the  County  Jail  of County, 

During  the  Month  of ,  18 — . 

Names.  |     No.  of  Days.     |  Remarks. 

State  of 


County  of 


-,} 


I, ,  sheriff  of  the  county  of ,  do  swear  that  the  fore- 
going statement  is  true. 


Subscribed  and  sworn   to"^ 

before  me,  this day  >- 

of ,  18—.  3 


No.   66. 
Certificate  of  Redemption  of  Real  Estate. 


-,  Sheriff. 


State  of- 


>■  ss. 


County  of 

I, ,  sheriff  of  the  county  of ,  State  of ,  do  hereby 

certify  that  on  the day  of  ,  18 — ,  Mary  Jucksch,  judg- 
ment debtor  under  the  judgment  in  the  action  hereinafter  men- 


No.  6']         sheriffs'  and  constables'  forms.  468 

tioned,  in  due  form  of  law,  tendered  and  paid  to  me  the  sum  of 
$188.00,  being  in  full  payment  of  the  purchase  price  paid  by  the 
purchaser  at  the  sale  of  the  real  property  hereinafter  described, 

made  by  me  on  the day  of ,  18 — ,  under  the  decree  of 

foreclosure  and  sale,  issued  to  me  out  of  the  Superior  Court  of 
the  city  and  county  of  San  Francisco,  State  of  California  (No. 
22,764),  in  the  action  of  La  Societe  Francaise  de  Epargnes  et  de 
prevoyance  Mutuelle  v.  The  Berkeley  Land  and  Town  Improve- 
ment Association,  Mary  Jucksch,  et  ah.,  including  two  per  cent, 
per  month  interest  thereon,  up  to  the  time  of  redemption,  to- 
gether with  the  amount  of  all  taxes  and  assessments  paid  by  the 
purchaser  on  said  property,  after  said  purchase,  and  interest 
thereon.  That,  thereupon,  I  received  said  sum  of  money  so  ten- 
dered and  paid  as  aforesaid,  and  have  granted  and  executed  to 
said  Mary  Jucksch  this,  my  certificate  of  redemption  of  said  prop- 
erty, in  conformity  with  the  statute  in  such  case  made  and  pro- 
vided.    The  premises  so  redeemed,  or  intended  to  be  redeemed, 

are  described  as  follows,  to  wit :  (description). 

In  witness  whereof,  I  have  hereunto  set  my  hand 
this day  of ,  18 — . 


Sheriff  of  the  county  of . 

County  of  Alameda,  ss. 

Personally  appeared  before  me,  this day  of ,  18 — ,  the 

above  named ,  to  me  known  to  be  the  person  who  executed 

the  foregoing  certificate  of  redemption,  as  the  sheriff  of  said 
county,  and  who  acknowledged  that  he  executed  the  same  for  the 
uses  and  purposes  therein  mentioned. 

No.  67. 
Grand  yury  Subpcena. 

The  People  of  the  State  of to : 

You  are  commanded  to  appear  before  the  Grand  Jury  of  the 

county  of ,  State  of ,  at  the  Grand  Jury  room,  in  the 

court-house  of  said  county,  on  the day  of ,  A.  D.  18 — , 

at o'clock,  — .  M.,  as ,  witness in  a  criminal  action 

prosecuted  by  the  People  of  the  State  of . 

Given  under  my  hand  this day  of ,  a.  d.  18 — . 

District  Attorney. 


469        sheriffs'  and  constables'  forms.     Nos.  68,  69 

No.  68. 
Criminal  Subpcena. 

In  the  Superior  Court  of  the  county  of ,  State  of . 

The  People  of  the  State  of 


against  >  Subpoena 


The  People  of  the  State  of to 


You  are  commanded  to  appear  before  the  Superior  Court  of 

the  county  of ,  State  of ,  at  the  court- room  of  said  court, 

at  the  court-house,  in  the  city  of ,  county  of ,  depart- 
ment No.  ,  on   the  day  of ,  A.  D.  18 — ,  at  

o'clock,  — .  M.,  as witness in  a  criminal  action  prose- 
cuted by  the  People  of  the  State  of against ,  on  the 

part  of  the . 

By  order  of  the  court. 

Given  under  my  hand  this day  of ,  a.  d.  18 — . 

,  Clerk. 


-•} 


By ,  Deputy  Clerk. 


No.  69. 
Grand  yury  Snmnwns. 

Grand  Jury  Summons. 

Sheriff's  Office, 

,  18,- 

Mr.  , 

Sir  :    Having  been  regularly  drawn  as  such,  you  are  hereby 
summoned  to  be  and  appear  in  the  court-room  of  department 

of  the  Superior  Court  of  the  county  of ,  in  the  county 

court-house  of  said  county,  on  day,  the day  of , 

A.  D.  18 — ,  then  and  there  to  serve  as  a  Grand  Juror, . 

Herein  fail  not,  under  penalty  of  the  law. 

,  Sheriff. 

By ,  Deputy  Sheriff. 


Nos.  70-72     sheriffs'  and  constables'  forms.        470 

No.  70. 
Trial  Jury  Summons. 

Trial  Jury  Summons. 

Sheriff's  Office, ,  \ 

18-.  ] 

Mr.  

Sir  :     Having  been  regularly  drawn  as  such,  you  are  hereby 

summoned  to  attend  the  Superior  Court,  department  No. ,  of 

county,  at  the  court-house,  in  the  city  of ,  in  said  county, 

on ,  the day  of ,  A.  d.  18 — ,  at  o'clock,  a.  m. 

of  that  day,  then  and  there  to  serve  as  a  trial  juror  for  the  

session  of  said  court. 

Herein  fail  not,  under  penalty  of  the  law. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

No.  71. 

Special  Jury  Summons. 

Special  Jury  Summons. 

Sheriff's  Office, ,         ) 

18-.  ] 

Mr. 

Sir  :     You  are  hereby  summoned  to  attend  the  Superior  Court, 

department  No. ,  of county,  at  the  court-house,  in  the  city 

of ,  in  said  county,  on ,  the day  of ,  A.  D.  18 — , 

at o'clock,  A.  M.  of  that  day,  then  and  there  to  serve  as  a 

trial  juror,  for  the session  of  said  court. 

Herein  fail  not,  under  penalty  of  the  law. 

,  Sheriff. 

gy ^  Deputy  Sheriff. 

No.  72. 
Sheriff's  Inventory  and  Keeper  s  Receipt. 


Sheriff's   Inventory. 


By  virtue  of  a  writ  of against  the  defendant  in  the  above 

entitled  cause,  for  $ ,  with  interest  and  costs,  duly  attested 


471         sheriffs'  and  constables'  forms.     Nos.  73,  74 

Xlie day  of ,  A.  d.  18 — ,  I  have  levied  upon  the  follow- 
ing property  upon  the  premises  of ,  and  in possession, 

,  to-wit :  (description). 

Dated  at ,  this day  of 18 — . 


/        Sheriff  of  the  county  of . 

By ,  Deputy  Sheriff. 

The  following  is  the  keeper's  indorsement  on  above  form  : 

Keeper's  Receipt. 

I  hereby  acknowledge  that  I  have  received  the  within  described 

property  so  levied  upon  by  the  sheriff  of county,  from  said 

sheriff,  and  hereby  promise  and  undertake  to  return  the  same, 

and  every  part  thereof,  to  the  said  sheriff  on  demand.     . 

Dated, 18—. 

,  Sheriff's  Keeper. 


No.  73. 

Return  on  Habeas  Corpus. 


Sheriff's  Office, 
County  of 

I    do  hereby  return  to  the  honorable  judge  of  the  Superior 

Court  of county,  that  before   the   coming   to    me   of  the 

within  writ,  the  said  Petroleum  V.  Nasby  was  committed  to  my 
custody,  and  is  detained  by  virtue  of  a  commitment,  a  copy  of 
which  is  hereto  annexed,  the  original  of  which  I  also  herewith 
produce  ;  nevertheless,  I  have  the  body  of  the  said  Petroleum 
V.  Nasby  before  you  at  the  time  and  place  within  mentioned,  as  I 
am  within  commanded. 


Sheriff  of  the  county  of 


Dated, ,  18 — . 

No.  74. 

Return  on  Death  Warrant. 

State  of  California,  |  ^^ 

County  of  Alameda,  j 

I,  Charles   McCleverty,  sheriff  of  the  county  of  Alameda,  do 
hereby  certify  and  return  that  I  received  the  within  warrant  on 


No.  74         sheriffs'  and  constables'  forms.  472 

the  3d  day  of  January,  a.  d.  1884,  and  that,  in  compliance  with 
three  certain  orders  of  reprieve,  granted  by  the  Honorable  George 
Stoneman,  governor  of  the  State  of  California,  and  issued  under 
the  great  seal  of  the  State  of  California,  and  delivered  to  me,  the 
execution  of  the  within  named  Lloyd  L.  Majors  was  postponed 
by  me  until  the  23d  day  of  May,  a.  d.  1884,  on  which  said  last 
named  day,  between  the  hours  of  9  o'clock  in  the  forenoon  and 
4  o'clock  in  the  afternoon  of  said  day,  to  wit :  between  the  hours 
of  II  and  12  o'clock  of  said  day,  in  pursuance  of  said  warrant  and 
reprieves,  said  Lloyd  L.  Majors  was  executed  by  me,  as  such 
sheriff,  by  hanging  by  the  neck  until  he  was  dead,  in  the  jail  yard 
of  the  jail  of  said  county  of  Alameda  ;  and  that  said  execution 
was  conducted  in  conformity  to  the  provisions  of  law  of  this 
State  concerning  capital  punishment,  and  of  the  sentence  referred 
to  in  said  warrant. 

Charles  McCleverty, 

Sheriff  of  the  county  of  Alameda. 

Dated,  Oakland,  this  24th  day  of  May,  a.  d.  1884. 


CHAPTER  XXIV. 

fees  of  sheriffs  and  constables. 

Fees  of  Sheriffs. 

In  the  counties  of  Alpine,  Alameda,  Amador,  Butte, 
Calaveras,  Del  Norte,  Fresno,  Inyo,  Kern,  Lake, 
Lassen,  Mariposa,  Mono,  Merced,  Napa,  Nevada, 
Placer,  Plumas,  San  Joaquin,  Shasta,  Santa  Barbara, 
Sierra,  Solano,  Stanislaus,  Sutter,  Tehama,  Trinity, 
Tuolumne,  Yolo,  Ventura,  Sacramento,  and  San 
Mateo,  the  sheriff  receives  the  following  fees,  except- 
ing that  in  Del  Norte  county  sheriffs'  commissions  are 
two  per  cent,  on  the  first  thousand  dollars,  and  one 
per  cent,  on  all  sums  above  that  amount,  when  prop- 
erty is  sold ;  and  one-and-a-half  and  one  per  cent, 
when  no  sale  takes  place : 

For  serving  a  summons  and  complaint,  or  any 
other  process  by  which  an  action  or  proceeding 
is  commenced,  on  each  defendant        ...  ...  $i   oo 

For  serving  an  attachment  on  property,  or 
levying  an  execution,  or  executing  an  order  of 
arrest,  or  order  for  the  delivery  of  personal 
property  ...  ...  ...  ...  ...  ...     2  oo 

For  serving  an  attachment  upon  any  ship,  boat, 
or  vessel,  in  proceedings  to  enforce  any  lien 
thereon  created  by  law  ...         ...         ...         ...     3  00 


FEES  OF  SHERIFFS  AND  CONSTABLES.  474 

For   his    trouble   and   expense    in    taking  and 
keeping  possession  of  and  preserving  property 
under  attachment  or  execution,  or  other  process, 
such  sum  as  the  court  shall  order,  provided  that 
no  more  than  $3  per  diem  shall  be  allowed  to  a 
keeper — if  allowed  by  court,  per  day  ...  ...  $3  00 

For  taking  bond  or  undertaking  in  any  case  in 
which  he  is  authorized  to  take  the  same  ...      i   00 

For  copy  of  any  writ,  process,  or  other  paper, 
when   demanded    or    required  by  law,    for   each 

folio  20 

For  serving  every  notice,  rule,  or  order      ...      i   00 
For  advertising  property  for  sale  on  execution, 
or  under  any  judgment  or  order  of  sale,  exclusive 
of  the  cost  of  publication,  each  notice  ...  ...      i   00 

For  serving  a  writ  of  possession  or  restitution, 
putting  a  person  in  possession  of  premises  and 
removing  the  occupant  ...  ...  ...      3  00 

For  holding  each  inquest,  or  trial,  or  right  of 
property,    to    include   all    service   in   the   matter, 
except  mileage    ...  ...  ...  ...  ...     3  00 

For  serving  a  subpoena,  for  each  witness  sum- 
moned     ...  ...  ...  ...  ...  ...  50 

For  traveling,  to  be  computed  in  all  cases  from 
the  court-house,  to  serve  any  summons  and  com- 
plaint, or  any  other  process  by  which  an  action  or 
proceeding  is  commenced,  notice,  rule,  order, 
subpoena,  attachment  on  property,  to  levy  an 
execution,  to  post  notice  of  sale,  to  sell  property 
under  execution  or  other  order  of  sale,  to  execute 
an  order  for  the  delivery  of  personal  property, 
writ  of  possession  or  restitution,  to  hold  inquest 
or  trial  of  right  of  property,  or  in  executing  a 
writ  of  habeas  corpus  :    provided,  that  if  any  two 


475  FEES  OF  SHERIFFS  AND  CONSTABLES. 

or  more  papers  be  required  to  be  served  in  the 
same  suit,  at  the  same  time  and  in  the  same 
direction,  one  mileage  only  shall  be  charged,  to 
the  most  distant  points  to  complete  such  service  ; 
for    each    mile    necessarily    traveled,    in    going 

only $o  30 

Provided,  in  the  county  of  San  Diego  he  shall 
receive  for  each  mile  necessarily  traveled,  in 
going  only  ...  ...  ...  ...  ...  ^o 

For  commissions  for  receiving  and  paying  over 
money  on  execution,  or  other  process,  when  lands 
or  personal  property  has  been  levied  on  and  sold, 
on  the  first  one  thousand  dollars,  three  per  cent. ; 
on  all  sums  above  that  amount,  two  per  cent. 

For  commissions  for  receiving  and  paying  over 
money  on  execution  without  levy,  or  where  the 
lands  or  goods  levied  on  shall  not  be  sold,  on  the 
first  one  thousand  dollars,  one-and-one-half  per 
cent. ;  and  one  per  cent,  on  all  over  that  sum. 

The  fees  herein  allowed  for  the  levy  of  an 
execution,  costs  for  advertising,  and  percentage 
for  making  or  collecting  the  money  on  execution, 
shall  be  collected  from  the  judgment  debtor,  by 
virtue  of  such  execution,  in  the  same  manner  as 
the  sum  herein  directed  to  be  made. 

For  drawing  and  executing  a  sheriff's  deed,  to 
include  the  acknowledgment,  exclusive  of  stamps, 
to  be  paid  by  the  grantee  before  delivery        ...      3  50 

For  executine  a  certificate  of  sale,  exclusive  of 
the  filine  and  recordingr  of  the  same     ...  ...      i   00 

For  attending,  when  required,  on  any  court  of 
record,  in  person  or  by  deputy,  for  each  day,  to 
be  paid  out  of  the  county  treasury       ...  ...      3  00 

For  making  every  arrest  in  a  criminal  pro- 
ceeding   ...  ...  ...  ...  ...  ...     2  00 


FEES  OF  SHERIFFS  AND  CONSTABLES.  476 

For  summoning  a  grand  jur)^  of  twenty-four 
persons    ...  ...  ...  ...  ...  ...  $8  oo 

For  summoning  a  trial  jury  of  twelve  persons 
or  less      ...         ...         ...         ...         ...         ...     4  oo 

For  summoning  each  additional  juror  ...  25 

For  executing  every  sentence  of  death       ...   20  00 

For  all  civil  services  arising  in  Justice's  Courts, 
the  same  fees  as  are  allowed  to  constables  for  like 
services. 

For  every  mile  necessarily  traveled,  in  going 
only,  in  executing  any  warrant  of  arrest,  sub- 
poena, or  venire,  bringing  up  a  prisoner  on  habeas 
corpus,  taking  prisoners  before  a  magistrate  or 
to  prison,  or  for  mileage  in  any  criminal  case  or 
proceeding ;  provided,  that  in  serving  a  subpoena 
or  venire,  when  two  or  more  jurors  or  witnesses 
live  in  the  same  direction,  but  one  mileage  shall 
be  charged  ...  ...  ...  ...  ...  30 

Provided  further,  that  in  the  counties  of  Ama- 
dor and  Sacramento,  for  every  mile  necessarily 
traveled,  in  any  criminal  case    ...  ...  ...  20 

And  in  the  counties  of  Inyo  and  Mono       ...         40 

For  conveying  a  prisoner,  when  under  arrest, 
the  necessary  expenses  incurred  in  the  trans- 
portation. 

In  addition  to  the  above  an  Act  was  passed  by  the 
legislature  in  1878,  relative  to  the  duties  of  the  sheriff 
of  Alameda  county,  as  follows  : 

In  all  cases  where  a  keeper  is  required,  by  either  the 
plaintiff  or  defendant,  to  take  charge  of  property  seized 
on  attachment,  execution,  or  other  process,  the  sheriff 
shall  be  allowed  and  be  paid  by  the  party  requiring  such 
keeper,  the  sum  of  $3  per  day  as  compensation  for 
such  keeper ;  and  in  case  no  keeper  is  required,  then 


477  FEES  OF  SHERIFFS  AND  CONSTABLES. 

the  sheriff  shall  be  allowed  to  charge,  collect,  and 
retain,  to  his  own  use,  such  sums  of  money  as  he 
shall  reasonably  and  necessarily  incur  and  disburse  in 
the  taking,  keeping,  preserving,  removing,  and  stor- 
ing any  property  so  seized  as  aforesaid,  and  he  shall 
not  be  required  to  release  or  re-deliver  said  property 
until  all  such  expenses  are  refunded.  The  sheriff  shall 
also  be  allowed  to  retain  to  his  own  use  one-half  of 
the  mileage  provided  for  in  his  fee  bill,  to  cover  in 
part  the  necessary  traveling  expenses  of  himself  and 
his  deputies,  in  the  discharge  of  their  official  duties  ; 
provided,  no  mileage  shall  be  charged  or  collected  by 
the  sheriff  or  his  deputies  for  services  performed  by 
them  for  the  county  of  Alameda. 

IN  YUBA  COUNTY  THE   SHERIFF'S  FEES  ARE 

AS  follows: 

Serving  summons 

Takinof  bond  or  undertakinp" 

Copies  of  any  paper,  per  folio 

Serving  every  notice,  rule,  or  order 

Serving  subpoena,  each  witness 

Attachment 

Levying  execution 

Executinof  order  of  arrest 

Executing  order  for  delivery  of  personal  prop- 
erty 

Keeper's  fees,  allowed  by  court,  per  day 

Attachment  on  ship,  boat,  or  vessel 

Selling  boat  or  vessel,  fees  and  expenses  same 
as  for  sales  on  execution. 

Advertising  sales,  exclusive  of  printing       ...      2  oo 

Commissions  on  sales,  two  per  cent  on  the  first 
^1000  ;  and  one  per  cent,  on  all  over  that  amount. 


2 

00 

I 

00 

20 

I 

00 

50 

2 

00 

2 

00 

2 

00 

2 

00 

0 

00 

2 

00 

FEES  OF  SHERIFFS  AND  CONSTABLES.        478 

Commissions  where  no  sale,  one-and-one-half 
per  cent,  on  the  first  $1000  ;  one  per  cent,  on 
all  over  that  amount. 

Sheriff's  deed,  including  acknowledgment  $3  CXD 
Serving  writ  of  possession  or  restitution  ...  5  00 
Attendance  on  court,  per  day  ...  ...     3  00 

Holding  trial  of  right  of  property     5  00 

Arrest  in  criminal  proceeding  ...  ...      2  00 

Summoning  grand  jury  ...  ...  ...     8  00 

Summoning  trial  jury  ...  ...  ...     6  00 

Each  additional  juror  ...  ...  ...  50 

Mileage,  going  only,  per  mile  25 

Executing  sentence  of  death  ...  ...   50  00 

For  services  in  Justices'  Courts,  the  same  fees 
as  are  allowed  to  constables. 

THE  FEES  OF  THE  SHERIFF  OF  SAN  BERNARDINO 
COUNTY    ARE    AS    FOLLOWS  I 

Serving  summons       ...  ...  ...  $1   00 

Serving  attachment    ...  ...  ...  ...     2  00 

Levying  execution      ...  ...  ...  ...     2  00 

Executing  order  of  arrest      ...  ...  ...      2  00 

Executing    order    for    delivery    of    personal 

property  •   ...  ...  ...  •••  •••     2  00 

Attachment  of  ship,  boat,  or  vessel 3  00 

Keeper's  fees,  to  be  allowed  by  court,  not  over, 

per  day     ...  ...  ...  ...  ...  •  •  •      3  00 

Taking  bond  or  undertaking  i   00 

Copies  of  writs  or  other  paper,  per  folio      ...  20 

Serving  every  notice,  rule,  or  order  ...      i   00 

Advertising    property,    exclusive   of    printing, 

each  notice  ...  ...  ...  ...  •••      i   00 

Serving  writ  of  possession  or  restitution  ...  3  00 
Trial  of  right  of  property,  excepting  mileage     3  00 


479       FEES  OF  SHERIFFS  AND  CONSTABLES. 

Serving  subpoena,  each  witness        ...  . . .  $o  50 

Mileage  in  civil  cases,  per  mile         ...  ...         30 

Commissions,  when  sale,  two  per  cent,  on  the 
first  $1000  ;  on  sums  above  that  amount,  one-and- 
one-half  per  cent. 

Commissions,  when  no  sale,  one-and-one-half 
per  cent,  on  the  first  <^iooo  ;  one  per  cent,  on  all 
over  that  amount. 

Sheriff's  deed,  including  acknowledgment         3  00 

Certificates  of  sale,  exclusive  of  recorder's  fees, 
each 

Attendance  on  court,  per  day 

Arrests  in  criminal  cases 

Summoning  grand  jury 

Summoning  trial  jury  of  twelve  persons 

Summoning  each  additional  juror     . . . 

Executing  sentence  of  death 

Mileage  in  criminal  cases,  per  mile 

For  conveying  prisoner  when  under  arrest,  the 
necessary  expenses  incurred. 

THE  FEES  OF  THE  SHERIFF  OF  COLUSA  COUNTY 
ARE  AS  FOLLOWS  : 

For  serving  a  summons  and  complaint,  or  any 
other  process  by  which  an  action  or  proceeding  is 
commenced,  on  each  defendant  ...  ...  $0  50 

For  serving  an  attachment,  or  levying  an  exe- 
cution, or  executing  an  order  of  arrest,  or  order 
for  the  delivery  of  personal  property  ...      i  00 

For  serving  an  attachment  on  any  ship,  boat, 
or  vessel,  in  proceedings  to  enforce  any  lien 
thereon  created  by  law  ...  ...  ...  2  00 

For  his  trouble  and  expense  in  taking  and 
keeping  possession  of  and  preserving  property 


I 

00 

•••     3 

00 

...     2 

GO 

...     8 

GO 

...     4 

00 

25 

...  40 

GO 

30 

FEES  OF  SHERIFFS  AND  CONSTABLES.  48O 

under  attachment  or  execution,  or  other  process, 
such  sum  as  the  court  shall  order ;  provided,  that 
no  more  shall  be  allowed  to  a  keeper,  per  diem, 
than      $2  00 

For  taking  bond  or  undertaking  ...  50 

For  copy  of  any  writ  or  paper  required,  per 
folio      15 

For  serving  every  notice,  rule,  or  order  50 

For  advertising  property  for  sale,  exclusive  of 
cost  of  publication,  for  each  notice  ...  50 

For  serving  writ  of  possession  and  restitu- 
tion       3  00 

For  holding  each  inquest,  or  trial  of  right  of 
property,  to  include  all  services  in  the  matter  ex- 
cept mileage        ...  ...  ...         ....         ....     3  00 

For  serving  a  subpoena,  for  each  witness    ....         25 

For  traveling,  whenever  traveling  is  necessary, 
in  the  performance  of  any  duty  required  of  him 
by  law,  other  than  taking  prisoners  to  the  state's 
prison  or  insane  persons  to  the  insane  asylum,  to 
be  computed  from  the  court-house,  per  mile  25 

Provided,  that  for  serving  process,  or  serving  or 
posting  notices  or  papers,  in  the  same  action  or 
proceeding,  in  the  same  direction,  and  at  the  same 
time,  one  mileage  only  shall  be  charged. 

For  commissions  for  receiving  and  paying  over 
money  on  execution,  or  other  process,  when  land 
or  personal  property  has  been  levied  on  and  sold, 
on  the  first  $1000,  one-and-one-half  per  cent,  and 
one  per  cent,  on  all  sums  over  that  amount ;  pro- 
vided, the  aggregate  amount  on  any  execution 
shall  not  exceed  $100. 

For  commissions  for  receiving  and  paying  over 
money  on  execution  without  levy,  or  where  the 


481  FEES  OF  SHERIFFS  AND  CONSTABLES, 

lands  or  goods  levied  on  shall  not  be  sold,  on  the 
first  ^1000,  one-and-one-half  per  cent.,  and  one 
per  cent,  on  all  sums  over  that  amount ;  provided, 
the  aggregate  amount  shall  not  exceed  the  sum 
of  $25. 

The  fees  herein  allowed  for  the  levy  of  an  execu- 
tion, cost  for  advertising,  and  percentage  for  mak- 
ing and  collecting  the  money  on  execution,  shall 
be  collected  from  the  judgment  debtor,  by  virtue 
of  such  execution,  in  the  same  manner  as  the  sum 
therein  directed  to  be  made. 

For  drawing  and  executing  a  sheriff's  deed,  ex- 
clusive of  acknowledgment,  to  be  paid  by  the 
grantee,  before  delivery  ....         ....         ....  ^3  00 

For  executing  a  certificate  of  sale,  exclusive  of 
the  filing  and  recording  ....         ....         ....     i  00 

For  attending,  when  required,  on  any  court  of 
record,  in  person,  or  by  deputy,  for  each  day         3  00 

For  making  every  arrest,  in  a  criminal  proceed- 
ing ....  ....  ....  ....  ....  ....      I   00 

For  summoning  a  grand  jury  of  twenty-four 
persons    ....         ....         ....         ....         ....         ....     8  00 

For  summoning  a  trial  jury  of  twelve  persons, 
or  less       ....         ....  ....  ....  ....  ....     3  00 

For  summoning  each  additional  juror         ....  25 

For  executing  every  sentence  of  death        ....  50  00 

For  all  services  in  Justices'  Courts,  the  same 
fees  as  are  allowed  to  constables  for  like  services. 

For  conveying  a  prisoner  when  under  arrest, 
the  necessary  expenses  incurred  in  the  transporta- 
tion. 

For  all  services  rendered  and  performed  by  the 
sheriff,  as  ex-officio  tax  collector,  he  shall  receive 
^1200  per  annum,  paid  out  of  the  common  fund. 
31 


FEES  OF  SHERIFFS  AND  CONSTABLES.  482 

THE   SHERIFF   OF   SAN    LUIS   OBISPO   COUNTY 
RECEIVES  FEES  AS  FOLLOWS  I 

Serving  summons,  each  defendant   ....         ....  $i  oo 

Attachment      i  50 

Levying  execution      ....         ....         ....         ....     i  50 

Executing  order  of  arrest      i  50 

Executing  order  for  deHvery  of  personal  prop- 
erty       I  50 

Attachment  on  ship,  boat,  or  vessel  ....     3  00 

Keeper's    fees,    to   be   allowed   by  court,   per 

day  3  00 

Taking  bond  or  undertaking  ....  ...  50 

Copies  of  writs  or  other  papers,  per  folio   ....  20 

Serving  any  notice,  rule,  or  order    ....         ....         50 

Advertising   sale,  exclusive    of  printing,    each 

notice        ....  ....  ....  ....  ....         ....      i  00 

Serving  writ  of  possession  or  restitution     ...      3  00 
Holding  trial  of  right  of  property     ...  ...     3  00 

Serving  subpoena,  each  witness         ...  ...  50 

Mileage,  in  civil  and  criminal  cases,  per  mile         30 
Commissions,  whether  property  sold  or  not,  two 

per  cent,  on  the  first  $1000  ;  and  one  per  cent,  on 

all  over  that  amount. 

Sheriff's  deed,  including  acknowledgment  . 

Certificates  of  sale,  each 

Attendance  on  court,  per  day 

Arrests  in  criminal  proceedings 

Summoning  grand  jury 

Summoning  trial  jur)^ 

Each  additional  juror 

Executing  every  sentence  of  death 

For  civil  services  in  Justices'  Courts,  the  same 

fees  as  are  allowed  to  constables. 


3 

50 

I 

00 

^ 

J 

00 

2 

00 

8 

00 

4 

00 

25 

20 

00 

48: 


FEES  OF  SHERIFFS  AND  CONSTABLES. 


For   conveying   a    prisoner    under  arrest,   the 
necessary  expenses  incurred  in  the  transportation. 


...  $1 

oo 

50 

15 

50 

25 

I 

50 

I 

50 

I 

50 

THE  FEES  ALLOWED  TO  SHERIFFS  IN  THE  COUNTIES  OF 
HUMBOLDT,   MONTEREY,   SANTA  CLARA,  LOS  AN- 
GELES,  SANTA    CRUZ,   SAN    BENITO,  AND 
TULARE,  ARE  AS  FOLLOWS  : 

For  serving  summons,  each  defendant 

For  taking  bond  or  undertaking 

Copies  of  writ  or  other  paper,  per  foHo 

Serving  every  notice,  rule,  or  order 

Serving  subpoena,  each  witness 

Attachment 

Levying  execution 

Executinor  order  of  arrest 

Executing  order  for  dehvery  of  personal  prop- 
erty ...  ...  ...  ...  ...  ...      I 

No  traveling  fees  allowed  on  attachment,  order 
of  arrest,  or  order  for  delivery  of  personal  prop- 
erty, when  the  same  accompanies  the  summons 
in  the  suit  and  may  be  executed  at  the  time  of 
the  service  of  the  summons,  unless  for  the  dis- 
tance actually  traveled  beyond  that  required  to 
serve  the  summons. 

Keepers'  fees,  to  be  allowed  by  court,  not  ex- 
ceeding, per  day  ...  ...  ...  ...     3 

Attachment  on  vessel  ...  ...  ...      i 

Care  of  vessel  under  attachment,  all  necessary 
expenses,  allowed  by  court,  and  in  addition,  per 
day  3 

For  selling  any  boat,  vessel,  or  tackle,  apparel, 
or  furniture  thereof  so  attached,  or  other  goods 
attached,  and  for  advertising  such  sale,  the  same 
fees  as  on  execution. 


50 


00 
50 


00 


FEES  OV  SHERIFFS  AND  CONSTABLES.  484 

For  advertising  property  for  sale  on  execution, 
or  under  any  judgment  or  order  of  sale,  exclu- 
sive of  cost  of  publication         ...  ...  ...  $1  00 

Commissions  on  sale,  two  per  cent,  on  the  first 
$1000,  and  one  per  cent,  on  all  sums  above  that 
amount. 

Commissions  without  levy  or  sale,  one-and-one- 
half  per  cent,  on  the  first  ^looo,  and  one  per 
cent,  on  all  over  that  sum. 

Costs  on  execution  are  to  be  collected  from  the 
judgment  debtor. 

Sheriff's  deed,  including  acknowledgment  4  00 

Serving  writ  of  possession  or  restitution     ...      5  00 

Attendance  on  court  of  record,  per  day      ...      3  00 

For  holding  inquest  or  trial  of  right  of  prop- 
erty, including  all  service  except  mileage 

Arrest  in  criminal  proceeding 

Summoning  a  grand  jury 

Summoning  trial  jury 

Each  additional  juror 

For  traveling,  to  be  computed  in  all  cases  from 
the  court-house,  to  serve  any  summons  and  com- 
plaint, or  any  other  process  by  which  action  or 
proceeding  is  commenced,  notice,  rule,  order,  sub- 
poena, venire,  attachment  on  property,  or  to  levy 
an  execution,  or  execute  an  order  of  arrest,  or 
order  for  the  delivery  of  personal  property,  writ 
of  possession  or  restitution,  to  hold  inquest  or 
trial  of  right  of  property,  or  in  bringing  up  a  pris- 
oner on  writ  of  habeas  corpus,  for  each  mile  neces- 
sarily traveled,  in  going  only     ...  ...  ...  25 

For  traveling  to  serve  any  process  in  criminal 
cases,  or  for  taking  a  prisoner  from  prison  before 
a  court  or  magistrate,  for  each  mile  necessarily 
traveled,  in  going  only  ...  ...  ...         20 


3  00 

2  00 
6  00 

3  00 
20 


485  FEES  OF  SHERIFFS  AND  CONSTABLES. 

For  taking  a  prisoner  from  the  place  of  arrest  to 
prison,  or  before  a  court  or  magistrate,  for  each 
mile  necessarily  traveled,  in  going  only  ...   ^o  25 

For  each  additional  prisoner  taken  at  the  same 
time  ...  ...  ...  ...  ...  ...  15 

Provided,  that  if  any  two  or  more  papers  be  re- 
quired to  be  served  in  the  same  suit  or  proceed- 
ing, at  the  same  time  and  in  the  same  direction, 
one  mileage  only  shall  be  charged  ;  and  provided, 
also,  in  serving  a  subpoena  or  venire,  when  two  or 
more  jurors  or  witnesses  live  in  the  same  direc- 
tion, traveling  fees  shall  be  charged  only  for  the 
most  distant;  diud provided,  further,  that  only  one 
mileage  per  day  shall  be  charged  for  taking  a  pris- 
oner from  prison,  before  a  court  or  magistrate ;  pro- 
vided, that  in  the  county  of  Santa  Clara  the  sheriff 
shall  be  entitled  to  thirty  cents  per  mile,  going 
only,  as  traveling  fees  in  civil  cases. 

For  executing  every  sentence  of  death        ...   20  00 

For  all  services  in  Justices'  Courts,  the  same 
fees  as  are  allowed  to  constables. 

THE  FEES  RECEIVED  BY  THE  SHERIFF  OF  MENDO- 
CINO COUNTY  ARE  AS  FOLLO\VS  I 

Serving  summons       ...  ...  ...  ...  $0  50 

Attachment     ...  ...  ...  ...  ...  75 

Levying  execution      ...  ...  ...  ...  75 

Executing  order  of  arrest     ...  ...  ...  75 

Executing  order  for  delivery  of  personal  prop- 
erty    75 

Attaching  ship,  boat,  or  vessel  ...  ...      i  25 

Keeper's    fees,    per   day,    to    be    allowed    by 

court         I  50 

Taking  bond  or  undertaking  ...  ...  25 


FEES  OF  SHERIFFS  AND  CONSTABLES.  486 

Copies  of  papers,  per  folio    ...          ...          ...  $o   lo 

Serving  every  notice,  rule,  or  order             ...  25 
Advertising  property    for    sale,    exclusive    of 

printing,  each  notice       ...          ...          ...          ...  50 

Serving  writ  of  possession  or  restitution     ...  2  00 

Holding  trial  of  right  of  property    ...          ...  3  00 

Serving  subpoena,  each  witness         ...          ...  25 

Mileage            ...          ...          ...          25 

Commissions  in  all  cases  one  per  cent. 

Sheriff's  deed,  including  acknowledgment  2   50 

Certificate  of  sale,  each         ...          ...          ...  75 

THE  FEES  OF  THE  SHERIFF  OF  EE  DORADO  COUNTY 
ARE  AS  FOLLOWS  : 

For  serving  summons 

Mileage,  per  mile 

Taking  bond  or  undertaking 

Copies  of  any  writ  or  other  paper,  per  folio 

Serving  every  notice,  rule,  or  order 

Serving  subpoena,  each  witness 

Serving  attachment    ... 

Levying  execution 

Executing  order  of  arrest 

Executing  order  for  delivery  of  personal  prop- 
erty ...  ...  ...  ...  ...  ...      2  00 

For  traveling,  per  mile,  to  serve  an  attachment, 
execution,  order  of  arrest,  or  order  for  delivery  of 
personal  property,  or  serving  a  subpoena,  for  each 
mile  traveled,  in  going  only,  per  mile  ...         50 

Provided,  that  if  served  with  the  summons  in 
the  suit,  no  mileage  shall  be  charged,  if  served  in 
the  same  direction,  unless  for  distance  actually 
traveled  beyond  that  required  to  serve  the  sum- 
mons ;  provided,  also,  that  when  two  or  more  per- 


I 

00 

50 

I 

00 

30 

I 

00 

50 

2 

GO 

2 

00 

2 

00 

487  i^'EES  OF  SHERIFFS  AND  CONSTABLES. 

sons  are  subpoenaed  in  the  same  suit  at  the  same 
time,  mileage  shall  be  charged  for  the  most  dis- 
tant only,  if  living  in  the  same  direction. 

For  making  and  posting  notices,  and  advertising 
property  for  sale  on  execution,  or  under  any  judg- 
ment or  order  of  sale,  not  to  include  the  cost  of 
publication  in  a  newspaper        ...  ...  ...   $2  00 

For  commissions  for  receiving  and  paying  over 
money  on  execution  or  process,  when  lands  or  per- 
sonal property  has  been  levied  on,  advertised  and 
sold,  four  per  cent,  on  the  first  $500 ;  three  per 
cent,  on  all  over  $500  and  under  $1000  ;  two  per 
cent,  on  all  over  $1000  and  under  $1500  ;  one  per 
cent,  on  all  over  $1500. 

Commissions,  without  sale,  two  per  cent,  on  the 
first  $1000,  and  one  per  cent,  on  all  over  that 
sum. 

Fees  under  execution  are  to  be  collected  from 
the  defendant. 

Sheriff's  deed,  exclusive  of  acknowledgment      3  00 

Serving  writ  of  possession  or  restitution     ...      5  00 

Holding  inquest  or  trial  of  the  right  of  prop- 
erty, to  include  all  services  in  the  matter,  except 
mileage    ...  ...  ...  ...  ...  ...     5  00 

For  mileage,  to  serve  any  process  in  civil  cases, 
per  mile    ...  ...  ...  ...  ...  ...  50 

For  services  in  Justices'  Courts,  the  sheriff  re- 
ceives the  same  fees  as  are  allowed  constables. 

Mileage  in  criminal  cases,  per  mile  ...  20 

For  taking  a  prisoner  before  a  magistrate  or  to 
prison,  or  service  of  process  in  any  criminal  case, 
he  shall  receive  mileage  for  the  most  distant  only, 
where  witnesses  or  parties  upon  which  service  is 
made  live  in  the  same  direction. 


FEES  OF  SHERIFFS  AND  CONSTABLES.  488 

THE  SHERH'F's  FEES  IN  THE  COUNTY  OF    CONTRA 
COSTA  ARE  AS  FOLLOWS  : 

For  serving  a  summons  and  complaint,  or  any 
Other  process  by  which  an  action  or  proceeding  is 
commenced,  on  each  defendant  ...  ...   $i   oo 

For  taking  a  bond  or  undertaking    ...  ...  50 

Copy  of  writ  or  any  other  paper,  per  foHo  1 5 

Pi^ovided,  that  he  shall  not  be  entitled  to  any 
fees   for  copies   of  pleadings  or   original  papers 
served  by  him  when  such  copies  have  been  fur- 
nished him  by  the  clerk,  or  person  requiring  the 
service. 

For  serving  every  notice,  rule,  order,   or  sub- 
poena, on  each  person  served    ...  ...  ...  50 

Serving  an  attachment  ...  ...  ...      i    50 

Levying  an  execution  ...  ...  ...      i   50 

Executing  an  order  of  arrest  ...  ...      i    50 

Executing  order  for  delivery  of  personal  prop- 
erty ...  ...  ...  ...  •■■  ...      I   50 

Serving  an  attachment  on  any  ship,   boat,  or 
vessel  in  proceedings  to  enforce  any  lien  thereon 
created  by  law     ...  ...  ...  ...  ...      150 

For  keeper's  fees  while  such  ship,  boat,  or  ves- 
sel  is   in   the  actual    custody  of  the  sheriff,  per 
day  ...  ...  ...  ...  ...  ...     3  00 

Together  with  such  further  necessary  expenses, 
resulting  from  such  custody,  as  are  supported  by 
the  oath  of  the  officer  making  such  service,  and  as 
shall  be  allowed  by  the  court. 

For  selling  any  boat,  vessel,  or  tackle,  apparel 
or  furniture  thereof  so  attached,  or  other  goods 
attached,  and  for  advertising  such  sale,  the  same 
fees  as  for  sale  on  execution. 


489  FEES  OF  SHERIFFS  AND  CONSTABLES. 

For  advertising  property  for  sale  on  execution, 
or  under  any  judgment  or  order  of  sale,  exclu- 
sive of  the  cost  of  publication  ...  ...  $1  00 

For  commissions  for  receiving  and  paying  over 
money  on  execution  or  other  process,  when  lands 
or  personal  property  have  been  levied  on  and 
sold,  on  the  first  $1000  or  sums  less  than  $1000, 
two  per  cent.;  on  all  sums  above  $1000  and  not 
exceeding  $20,000,  one-and-one-half  per  cent; 
on  all  sums  above  $20,000,  one  per  cent. 

For  commissions  for  receiving  and  paying  over 
money  on  execution  without  levy,  or  when  the 
land  or  goods  levied  on  shall  not  be  sold,  on  all 
sums  less  than  $1000  and  not  exceeding  $1000, 
one-and-one-half  per  cent.;  for  all  sums  above 
$1000  and  not  exceeding  $20,000,  one  per  cent; 
on  all  sums  above  $20,000,  one-half  of  one  per 
cent 

The  fees  herein  allowed  for  the  levy  of  an  exe- 
cution, and  for  advertising,  and  for  making  or 
collecting  money  on  execution,  shall  be  collected 
from  the  judgment  debtor,  by  virtue  of  the  exe- 
cution, in  the  same  manner  as  the  judgment  shall 
be  therein  directed  to  be  paid ;  pi'-ovided,  that 
when  the  judgment  creditor  purchases  property 
sold  on  execution  in  satisfaction  thereof,  he  shall 
pay  the  sheriff  his  fees  before  any  certificate  of 
sale  shall  be  issued  or  satisfaction  entered. 

For  drawing  and  executing  a  sheriff's  deed,  to 
include  acknowledgment,  to  be  paid  by  the 
grantee    ...  ...  ...  ...  ...  ...     3  00 

For  serving  a  writ  of  possession  or  restitu- 
tion ...  ...  ...  ...  ...  ...     3  00 

For  holding  each  inquest  or  trial  of  the  right 


FEKS  OF  SHERIFFS  AND  CONSTABLES.        49O 

of  property,    to   include  all  services  in  the  mat- 
ter except  mileage  ...  ...  ...  . . .   $3  oo 

For  summoning  a  trial  jury  in  any  civil  case      2  00 

For  traveling,  to  be  computed  in  all  cases  from 
the  court-house,  to  serve  any  summons  and  com- 
plaint, or  any  other  process  by  which  an  action 
or  proceeding  is  commenced,  notice,  rule,  order, 
or  subpoena,  venire,  attachment  on  property,  or 
to  levy  on  execution,  or  to  execute  an  order 
of  arrest,  or  order  for  the  delivery  of  personal 
property,  writ  of  possession  or  restitution,  to 
hold  inquest  or  trial  of  right  of  property,  or  in 
bringing  up  a  prisoner  on  habeas  corpus,  for 
each  mile  necessarily  traveled,  in  going  only,  per 
mile  ...  ...  ...  ...  ...  ...  20 

Provided,  that  if  any  two  or  more  papers  be 
required  to  be  served  in  the  same  suit,  at  the 
same  time  and  in  the  same  direction,  one  mileage 
only  shall  be  charged  ;  and  provided,  also,  in  serv- 
ing a  subpoena  or  venire,  when  two  or  more 
persons  or  witnesses  live  in  the  same  direction, 
traveling  fees  shall  be  charged  only  for  the  more 
distant. 

For  all  services  in  Justices'  Courts,  the  same 
fees  as  are  allowed  to  constables. 

For  keeper's  fees  for  holding  personal  property 
under  attachment  or  execution,  not  exceeding  $3 
per  day,  together  with  actual  expenses  neces- 
sarily incurred  in  keeping  the  same,  to  be  fixed 
and  allowed  by  the  court. 

THE  FEES  OF  THE  SHERIFFS  OF  SONOMA  AND  MARIN 
COUNTIES  ARE   AS    FOLLOWS  : 

Serving  summons,  on  each  defendant         ...   $1  00 


491  FEES  OF  SHERIFFS  AND  CONSTABLES. 

Attachment      $i   25 

Levying  execution      ...  ...  ...  ...      125 

Executing  order  of  arrest     ...  ...  ...      125 

Executing  order  for  delivery  of  personal  prop- 
erty        I   25 

Attachment  on    ship,  boat,  or  vessel         ...      i   25 
Keeping  property,  to  be  allowed  by  court,  not 
over,  per  day      ...  ...  ...  ...  ...     3  00 

Taking  bond   or  undertaking         ...  ...         40 

Copies  of  papers,  per  folio    ...  ...  ...  15 

Serving  every  notice,  rule,  or  order  ...  40 

Advertising  property  for  sale,  exclusive  of  print- 
ing, each  notice  ...  ...  ...  ...  ...      i  00 

Serving  writ  of  possession  or  restitution     ...      3  00 
Holding   trial    of    right   of    property,    besides 

mileage 3  00 

Serving  subpoena,  each  witness        ...  ...         40 

Mileage. — For  traveling,  to  be  computed  in  all 
cases  from  the  court-house,  to  serve  any  summons 
and  complaint,  or  any  other  process  by  which  an 
action  or  proceeding  is  commenced,  notice,  rule, 
order,  subpoena,  attachment  on  property,  to  levy 
an  execution,  to  post  notices  of  sale,  to  sell  prop- 
erty under  execution  or  other  order  of  sale,  to  exe- 
cute an  order  for  the  delivery  of  personal  property, 
writ  of  possession  or  restitution,  to  hold  inquest  or 
trial  of  right  of  property,  or  in  executing  a  writ  of 
habeas  corpus  ;  provided,  that  if  any  two  or  more 
papers  be  required  to  be  served  in  the  same  suit,  at 
the    same  time  and    in  the    same  direction,   one 
mileage  only  shall  be  charged  to  the  most  distant 
points  to  complete  such  service  ;    for  each  mile 
necessarily  traveled,  in  going  only       ...  ...  30 

For  commissions  for  receiving  and  paying  over 


FEES  OF  SHERIFFS  AND  CONSTABLES.        492 

money  on  execution,  or  other  process,  when  lands 
or  personal  property  has  been  levied  on  and  sold, 
on  the  first  $1000,  two  per  cent.;  on  all  sums  above 
that  amount,  one  per  cent. 

Commissions  as  above,  without  sale,  on  the  first 
$1000,  one-and-one-half  per  cent;  and  one  per 
cent,  on  all  over  that  sum. 

Commissions  are  to  be  collected  from  the  judg- 
ment debtor,  under  the  execution,  in  the  same 
manner  as  the  sum  therein  directed  to  be  made. 

Sheriff's  deed,  including  acknowledgment       $3   50 

Certificates  of  sale,  exclusive  of  recorder's  fee, 
each  ...  ...  ...  ...  ...  ...      I   00 

Attending  court,  in  person  or  by  deputy,  per 
day 

Arrest  in  criminal  case,  each         ,    ... 

Summoning  grand  jury 

Summoning  trial  jury 

Summoning  additional  jurors,  each 

Executing  sentence  of  death 

For  all  civil  services  in  Justices'  Courts,  the  .same 
fees  as  are  allowed  in  Superior  Courts. 

For  every  mile  necessarily  traveled  in  executing 
any  warrant  of  arrest,  subpoena,  or  venire,  bringing 
up  a  prisoner  on  habeas  corpus,  taking  prisoners 
before  a  magistrate  or  to  prison,  or  for  mileage  in 
any  criminal  case  or  proceeding  ;  provided,  that  in 
serving  a  subpoena  or  venire,  when  two  or  more 
jurors  or  witnesses  live  in  the  same  direction,  but 
one  mileage  shall  be  charged,  in  going  only  ...         40 

For  conveying  a  prisoner,  when  under  arrest, 
the  necessary  expenses  incurred  in  the  transporta- 
tion. 


1 

0 

00 

I 

50 

8 

00 

4 

00 
20 

20 

00 

493  FEES  OF  SHERIFFS  AND  CONSTABLES. 

IN    SISKIYOU,    SAN     DIEGO,    AND    MODOC    COUNTIES 
THE  FEES  OF  SHERIFFS  ARE  AS  FOLLOWS  : 

Serving  summons  and  complaint      ...  ...  ^i  oo 

Attachment     ...  ...  ...  ...  ...     2  oo 

Levying  execution      ...  ...  ...  ...     2  00 

Executinor  order  of  arrest     ...  ...  ...     2  00 

Executing  order  for  delivery  of  personal  prop- 
erty ...  ...  ...  ...         ...         ...     2  00 

Attachment  on  ship,  boat,  or  vessel  ...     3  00 

Keeper's  fees  to  be  allowed  by  court,  per  day, 

not  over  ...  ...  ...  ...  ...     3  00 

Taking  bond  or  undertaking  ...  ...      i  00 

For  copies  of  writs  or  other  papers,  per  folio         20 
Serving  every  notice,  rule,  or  order  ...      i   00 

Advertising  property,  exclusive  of  printing,  each 

notice       ...  ...  ...  ...  ...  ...      i  00 

Serving  writ  of  possession  or  restitution     ...      3  00 
Holding    trial    of    right    of    property,    except 

mileage    ..♦         ...  ...  ...  ...  ...     3  00 

Serving  subpoena,  each  witness         ...  ...         50 

Mileage  in  civil  cases,  per  mile         ...  ...         30 

Mileage  in  criminal  cases       ...  ...  ...  20 

Commissions  on  sale,   two  per  cent,  on  first 

^1000,  and  one-and-one-half  per  cent,  on  all  over 

that  amount. 

Commissions  where  no  sale,  one-and-one-half 

per  cent,  on  first  $1000,  and  one  per  cent,  on  all 

over  that  amount. 

Sheriff's  deed,  including  acknowledgment  3  00 

Certificates  of  sale,  each        ...  ...  ...      i  00 

Attendance  on  court,  per  day  ...  ...     3  00 

Making  arrest  in  criminal  case  ...  ...      2  00 

Summoning  grand  jury         ...  ...  ...     8  00 


FEES  OF  SHERIFFS  AND  CONSTABLES.  494 

Summoning  trial  jury  ...  ...  ...   $4  oo 

Each  additional  juror  ...  ...  ...  25 

Executing  every  sentence  of  death  ...   40  00 

For  all   civil    services  in  Justices'  Courts,   the 
same  fees  as  are  allowed  to  constables. 

For  conveying  prisoner  under  arrest,  the  neces- 
sary expenses  incurred  in  the  transportation. 

THE    FEES    OF    THE    SHERIFF    OF    THE    CITY    AND 
COUNTY  OF  SAN  FRANCISCO  ARE  AS  FOLLOWS  : 

Serving  summons       ...  ...  ...  ...  $  i   00 

Mileage,  per  mile 

Taking  bond  or  undertaking 

Certificate  of  sale,  each 

Copy  of  writ  or  other  paper 

Serving  subpoena,  each  witness 

Serving  attachment    ... 

Levying  an  execution 

Executing  order  of  arrest     . . . 

Serving  order  of  examination 

Serving  citation 

Serving  process  in  probate  proceedings      ...      i   00 

Serving  restraining  order  or  injunction       ...      2  00 

Advertising  property  for  sale  ...  ...      i   00 

Sheriff's  deed,  including  acknowledgment  5  00 

Summoning  jury  in  any  case  ...  ...      2  00 

Summoning  grand  jury         ...  ...  ...     4  00 

Attending  jury  ...  ...  ...  ...      i   00 

Attending  court   in   habeas   corpus  case,  each 

day  ...  3  00 

Serving  writ  of  possession  or  restitution     ...     3  00 
Attending  before  any  officer  with  a  prisoner  in 

surrender  of  bail,  or  to  receive  prisoner         ...      2  00 
Attachment  of  any  ship,  boat,  or  vessel      ...      2  00 


25 

1  00 

3  00 

25 
25 

2  00 

2  00 
2  00 
I  00 
I  00 


495  ^EES  OF  SHERIFFS  AND  CONSTABLES. 

Keeping  possession  of  vessel,  each  day      ...  ^3  00 
Selling  any  ship,   boat,  or  vessel,  or  tackle,  or 

furniture,  and  advertising  the  same,  same  fees  as 

for  sale  on  execution. 

Executing  every  sentence  of  death  ...   20  CXD 

Keeper's  fees,  per  day  ...  ...  ...     3  00 

Certificate  of  redemption      ...  ...  ...      5  00 

Commissions    on    executions  or  decrees  —  for 

the  first  $5000,  two  per  cent;  any  amount  over 

^5000,  one  per  cent. 

Fees  of  Constables. 

The  fees  of  constables  in   the  counties   of  Alpine, 
Alameda,     Amador,     Butte,     Calaveras,    Del    Norte, 
Fresno,  Inyo,  Kern,  Lake,  Lassen,  Mariposa,  Mendo- 
cino, Mono,  Merced,   Napa,  Nevada,   Placer,    Plumas, 
San    Diego,   Shasta,    Santa    Barbara,   Sierra,    Solano, 
Stanislaus,  Sutter,  Tehama,  Trinity,  Tuolumne,  Yolo, 
Sacramento,  Ventura  and  San  Mateo,  are  as  follows  : 
For  serving  summons,  each  defendant        ...  ^o  50 
For  summoning  any  jury,  including  mileage       2  00 
Provided,  that  in   the   counties  of  Amador  and 
Butte,  he  shall  have  %2  with  mileage. 

For  making  sales  of  estrays,  the  same  fees  as  on 
execution. 

For  all  other  services,  the  same  fees  as  are  al- 
lowed sheriffs  of  above  named  counties  for  similar 
services. 

In  the  county  of  Los  Angeles,  the  constables  therein 
shall  receive,  in  full  compensation  for  all  services  ren- 
dered by  them  in  criminal  cases,  a  sum  not  to  exceed 
$300  each  per  annum,  in  the  aggregate. 


FEES  OF  SHERIFFS  AND  CONSTABLES.  496 

In  the  county  of  San  Joaquin,  constables  receive  the 
same  fees  as  the  sheriff  of  that  county  is  allowed  for 
like  services. 

Mileage,  going  only $030 

Except  in  the  county  of  Inyo,  where  it  is    . . .         40 

The  fees  of  constables  of  the  county  of  San  Bernar- 
dino are  less  by  one-third  those  of  the  sheriff  of  that 
county. 

THE  FEES  OF  CONSTABLES  IN  COLUSA  COUNTY 
ARE  AS  FOLLOWS  : 

For  serving  summons,  for  each  defendant  ...  $0  50 
For  summoning  jury,  including  mileage  ...  2  00 
For  making  sales  of  estrays,  the  same  fees  as  on 

execution. 

For  all  other   services,  the  same    fees  as   are 

allowed  to  sheriffs  for  similar  services  performed. 

CONSTABLES  IN  THE  COUNTIES  OF  HUMBOLDT,  MONTE- 
REY,  SANTA  CLARA,   LOS  ANGELES,  SANTA  CRUZ, 
SAN    BENITO,  AND    TULARE,   RECEIVE 
THE    FOLLOWING    FEES  : 

For  servine  summons,  each  defendant        ...   $0  50 

Summoning  any  jury  before  a  justice  of  the 
peace,  including  mileage  ...  ...  ...      2 

Provided,  that  in  the  counties  of  Amador  and 
Butte  he  shall  have  $2  and  mileage. 

For  making  sales  of  estrays,  the  same  fees  as 
for  sales  on  execution. 

For  all  other  services,  the  same  fees  as  are  al- 
lowed sheriffs. 

For  services  performed  by  officers  under  the 


00 


497  FEES  OF  SHERIFFS  AND  CONSTABLES. 

Act  concerning  water-craft  found  adrift,  and  lost 
money  and  property,  they  shall  receive  the  fees 
prescribed  in  said  Act ;  provided,  that  in  the 
county  of  Los  Angeles  the  constables  therein 
shall  receive  in  full  compensation  for  all  services 
in  criminal  cases  a  sum  not  to  exceed  $300  per 
annum  ;  and,  provided,  that  in  the  county  of  San 
Joaquin,  constables  shall  receive  the  same  fees 
as  the  sheriff  of  said  county  is  allowed  for  like 
services. 

THE  FEES  FOR  CONSTABLES  IN  EL  DORADO  COUNTY 
ARE  AS  FOLLOWS  : 

For  serving  summons,  each  defendant,  includ- 
ing copy 

Summoning  jury  of  twelve  or  less 

Each  additional  juror 

Takins:  bond 

Summoning  witnesses,  each 

Serving  an  attachment 

Levying  an  execution 

Summoning  and  swearing  a  jury  to    try 
rights  of  property  and  taking  a  verdict  ...      2  00 

For  receiving  and  taking  care  of  property  on 
execution,  order,  or  attachment,  his  actual  neces- 
sary expenses,  to  be  allowed  by  the  justice  who 
issued  the  order,  attachment,  or  execution,  upon 
the  affidavit  of  the  constable  that  the  charofes  are 
correct,  and  that  the  expenses  were  necessarily 
incurred. 

Commissions  on  all  sums  on  execution,  three 
per  cent.,  to  be  charged  against  the  defendant. 

For  serving  a  warrant  ...  ...  ...      i   50 

32 


...  %l 

GO 

I 

50 

25 

50 

25 

I 

50 

I 
the 

50 

FEES  OF  SHERIFFS  AND  CONSTABLES. 


498 


Serving  order  for  the  delivery  of  personal  prop- 
erty   $1   50 

Making  an  arrest  in  a  civil  case        ...  ...      i   50 

Makinof  each  arrest  in  criminal  cases  ...     2  00 

For  every  mile  necessarily  traveled,  in  going 
only,  to  serve  any  civil  or  criminal  process  or 
paper,  or  to  take  a  prisoner  before  a  magistrate 
or  to  prison  ...  ...  ...  ...  ...  25 

But  when  two  or  more  persons  are  served  or 
summoned  in  the  same  suit,  and  at  the  same 
time,  mileage  shall  be  charged  only  for  the  most 
distant,  if  they  live  in  the  same  direction. 

For  sales  of  estrays,  the  same  fees  as  for  sales 
on  execution. 

For  transportation  of  prisoners  to  the  county 
jail,  the  actual  necessary  expenses. 

For  attending  a  Justice's  Court  and  taking 
charge  of  a  jury,  each  case       ...  ...  ...  50 

For  all  other  services,  the  same  as  are  allowed 
sheriffs. 

THE  FEES  OF  CONSTABLES  OF  THE  COUNTY  OF 
CONTRA  COSTA  ARE  AS  FOLLOWS  : 


Serving  summons       ...  ...  ...  ...   $0  50 

Summoning  jury  ...  ...  ...  ...      i   00 

Taking  bond    ...  ...  ...  ...  ...  25 

Summoning  each  witness       ...  ...  ...  15 

Attachment      ...  ...  ...  ...  ...     2  00 

Summoning  jury  and  trial  of  right  of  property   i    50 
For  receiving  and  taking  care  of  property  on 
execution,  attachment,  or  order,  his  actual  neces- 
sary expenses,  to  be  allowed  by  the  justice  who 
issued  the  execution,  upon  the  affidavit  of  the  con- 


499  FEES  OF  SHERIFFS  AND  CONSTABLES. 

Stable  that  such  charges  are  correct  and  the  ex- 
penses were  necessarily  incurred. 

Commissions  on  execution,  two  per  cent. 

Serving  a  warrant  or  order  for  the  delivery  of 
personal  property,  or  for  making  an  arrest  in  civil 
cases        ...         ...         ...         ...         ...         ...  $1  oo 

Making  an  arrest  in  criminal  cases  ...  ...      i   oo 

For  every  mile  necessarily  traveled,  in  going 
only,  to  serve  any  civil  or  criminal  process  or 
paper,  or  to  take  a  prisoner  before  a  magistrate 
or  to  prison  ...  ...  ...  ...  ...  15 

But  when  two  or  more  persons  are  served  or 
summoned  in  the  same  suit,  mileage  shall  be 
charged  only  for  the  most  distant,  if  they  live  in 
the  same  direction. 

For  making  sales  of  estrays,  the  same  fees  as 
for  sales  on  execution. 

For  all  other  services,  the  same  fees  as  are 
allowed  to  sheriffs  for  similar  services. 

For  services  performed  by  the  several  officers 
under  the  Act  concerning  water-craft  found  adrift, 
and  lost  money  and  property,  passed  April  5th, 
1850,  they  shall  receive  the  fees  prescribed  in  said 
Act. 

IN  THE  COUNTIES  OF  SONOMA  AND  MARIN,  THE 
FEES  OF  CONSTABLES  ARE  AS  FOLLOWS  : 

Serving  summons,  in  civil  cases,  each  defend- 
ant ...  ...  ...  ...  ...  ...  $0  50 

Summoning  any  jury  before  a  justice  of  the 
peace,  including  mileage  ...  ...  ...      2  00 

Provided,  that  in  the  counties  of  Amador  and 
Butte,  he  shall  have  %2  and  mileage. 


FEES  OF  SHERIFFS  AND  CONSTABLES.        5OO 

Making  sales  of  estrays,  the  same  fees  as  for 
sales  on  execution. 

For  all  other  services,  the  same  fees  allowed  to 
sheriffs  of  the  same  counties  for  similar  services. 

For  services  performed  by  the  several  officers 
under  the  Act  concerning  water-craft  found  adrift, 
and  lost  money  and  property,  passed  April  5th, 
1850,  they  shall  receive  the  fees  as  are  prescribed 
in  said  Act. 


THE  FEES  OF  CONSTABLES  IN  SISKIYOU  AND  MODOC 
COUNTIES  ARE  AS  FOLLOWS  I 

Serving  summons,  each  defendant  ...   $0  50 

Summoning  jury  before  justice  of  peace,  in- 
cluding mileage  ...  ...  ...  ...      2  00 

For  making  sales  of  estrays,  the  same  fees  as 
for  sales  on  execution. 

For  all  other  services,  the  same  fees  as  are  al- 
lowed to  sheriffs. 

For  services  performed  by  officers  under  the 
Act  concerning  water-craft  found  adrift,  and  lost 
money  and  property,  passed  April  5th,  1850, 
they  shall  receive  the  fees  prescribed  in  said  Act. 


IN  SAN  LUIS  OBISPO  COUNTY  CONSTABLES  RECEIVE 
THE  FOLLOWING  FEES  : 

Serving  summons 

Summoning  jury 

Taking  a  bond 

Attachment 

Holding  trial  of  right  of  property 


.  $1 

GO 

I 

50 

50 

I 

GO 

.        2 

GO 

50I        FEES  OF  SHERIFFS  AND  CONSTABLES. 

Serving  warrant  ...  ...  ...  ...   $i   oo 

Serving  order  for  delivery  of  personal   prop- 
erty ...  ...  ...  ...  ...  ...      I   GO 

Making  arrest  in  civil  cases  ...  ...      i   oo 

For  receiving  and  taking  care  of  property  on 
execution,  attachment,  or  other  order,  his   actual 
necessary  expenses,  to  be  allowed  by  the  justice 
upon  affidavit  of  the  constable  that  such  charges 
are  correct  and  the  expenses  necessarily  incurred. 
Mileage,  in  all  cases,  per  mile  ...  ...  t,o 

Commissions  on  all  sums,  two  per  cent. 
For  all  other  services,  civil  or  criminal,  except 
attending  court,  the  same  fees  as  sheriff. 

THE    CONSTABLES    OF    YUBA    COUNTY    RECEIVE 
THE    FOLLOWING    FEES : 

Serving  summons       ...  ...  ...  ■••   $ 

Summoning  jury 

Taking-  bond    ... 

Summoning  each  witness 

Serving  attachment     ... 

Holding  trial  of  right  of  property 

Servinpf  warrant 

Serving  order  for  delivery  of  personal  prop- 
erty 

Making-  arrest  in  civil  cases 

Arrest  in  criminal  cases 

Mileage  in  all  cases,  per  mile 

Making  sales  of  estrays,  the  same  fees  as  for 
sales  on  execution. 

Commissions  on  execution,  two  per  cent. 

For  receiving  and  taking  care  of  property  on 
execution,  attachment,  or  order,  his  actual  neces- 


iO 

50 

I 

00 

50 

15 

I 

50 

I 

50 

I 

50 

I 

50 

I 

50 

I 

50 

20 

FEES  OF  SHERIFFS  AND  CONSTABLES.        502 

sary  expenses,  to  be  allowed  by  the  justice  who  issued 
the  execution,  upon  the  affidavit  of  the  constable  that 
such  charges  are  correct,  and  the  expenses  were 
necessarily  incurred. 

For  all  other  services,  the  same  fees  as  are  allowed 
to  sheriffs  for  similar  services. 


INDEX. 


INDEX. 

[  The  references  are  to  the  Sectt07is.'\ 


ACT  OF  GOD, 

property  lost  through,  §  50. 
ACT  OF  1883, 

duties  of  officers  under  "county  government  bill,"  384. 
ACTS  OF  DEPUTY, 

sheriff  liable  for,  353. 
ACT  AS  ATTORNEY, 

officer  cannot,  379. 
ACTIONS, 

to  recover  reward,  467. 

for  fees,  363. 

against  officer  for  neglect,  333. 

against  sheriff,  344. 

against  officers,  326-358. 

for  trespass,  344. 

upon  undertakings,  358. 

for  preferred  labor  claims,  209. 

arrest  in  civil,  23. 

order  of  arrest  in  civil,  24. 

service  of  order  of  arrest  in  civil,  27. 

AFFIDAVIT, 

of  service  of  summons,  5.  ' 

and  order  in  claim  and  delivery,  37. 
to  labor  claims,  209. 

AGENT, 

sheriff  as,  132. 
AGREEMENT  TO  INDEMNIFY  SHERIFF,  347. 
AID  TO  OFFICERS, 

refusing,  423. 


506  INDEX. 

AID  TO  WRECKED  VESSELS,  §388. 
AIDING  PRISONERS  TO  ESCAPE,  417. 
APPLICATION  OF  MONEYS  ON  EXECUTION,  208. 

ARRESTS, 

how  made,  405. 

when  force  may  be  used  in,  406. 

when  may  be  made  at  night,  402. 

when  may  not  be  made  at  night,  403. 

without  warrant,  399. 

officer  making  may  summon  aid,  400^ 

for  fraud  and  torts,  396. 

without  authority,  421. 

in  another  county,  410. 

liabiHty  for  delay  in  making,  416. 

when  doors  may  be  broken  in,  407. 

for  fraud,  23. 

order  of  arrest,  24. 

temporary  exemptions  from,  25. 

void  order  of,  26. 

service  of  order  of,  27. 

in  civil  actions,  23. 

expenses  for  support  of  defendant,  28, 

in  habeas  corpus,  57. 

militia  exemptions  from,  390. 

when  witness  exempted  from,  441. 

of  witnesses,  439. 

ARREST  AND  BAIL, 

arrest  for  fraud,  23. 

deposit  of  bail  money,  34. 

discharge  final,  36. 

exception  to  sureties,  32. 

imprisonment  for  debt,  22. 

justification  of  sureties,  33. 

liability  of  sheriff  and  sureties,  31. 

order  of  arrest,  24. 

service  of  the  order,  27. 

sheriff's  expenses  in,  28. 

sheriff  liable  for  escape  in,  35. 

surrender  of  defendant  in,  30. 

temporary  exemptions  from  arrest,  25. 

void  order  of  arrest,  26. 

when  defendant  may  be  discharged,  29. 

ASSAULTS  BY  OFFICERS,  422. 

ASSIGNEE'S  LIEN  IN  EXECUTION,  204. 


INDEX.  507 

ASSISTANCE, 

writ  of,  §§  302-310. 

ATTACHABLE  INTERESTS  IN  LAND,  226. 

ATTACHABLE  INTEREST  IN  LEASED  PROPERTY,  117. 

ATTACHMENT  BY  GARNISHMENT,  120. 

ATTACHMENT  OF  STOCKS,  114,  115. 

ATTACHMENT  OF  WAGES,  153. 

ATTACHMENT  OF  PARTNERSHIP  PROPERTY,  113. 

ATTACHMENT— PERSONAL  PROPERTY, 

authority  of  officer  in  levying,  91. 

authority  to  conduct  business  in  attachment,  iii. 

authority  of  deputy,  112. 

attached  property  in  custody,  98. 

attachment  hen  dependent  on  possession,  100. 

attachment  of  stocks,  114,  115. 

attachable  interest  in  leased  property,  117. 

attaching  goods  in  hands  of  third  parties,  118. 

death  of  defendant  destroys  attachment  lien,  138. 

examination  of  garnishee,  122. 

excessive  levy,  108. 

form  of  undertaking,  89. 

fraudulent  transfers,  129. 

the  garnishment,  120. 

garnishment  of  stocks,  115. 

garnishment  of  sum  due  on  homestead,  123. 

how  insolvency  proceedings  affect  attachment,  95. 

joint  trespassers,  135. 

judgment  for  defendant  dissolves  attachment,  137. 

keeper's  fees,  104. 

liability  of  garnishee,  124. 

liability  from  delay,  87. 

notice  to  garnishee,  121. 

officer's  right  to  indemnity,  130. 

original  writ  kept  in  office,  90. 

partnership  property,  113. 

penalty  for  obstructing  officer,  107. 

property  not  capable  of  manual  delivery,  1 16. 

pledge  of  goods — rights  of  pledge,  119. 

property  released  by  undertaking,  136. 

prior  liens  must  be  satisfied,  loi. 

property  must  be  within  view  of  officer,  99. 

property  must  be  taken  into  custody,  97. 

receiving  the  writ,  85. 

removal  of  attached  property,  105. 


508  INDEX. 

ATTACHMENT— PERSONAL  PROPERTY, 

release  of  personal  property,  §  139. 

responsibility  in  serving-  process,  86. 

return  of  writ,  140. 

sales  prohibited  under  attachment,  103. 

sale  of  perishable  property,  126. 

sales  by  order  of  court,  128. 

sheriff  liable  for  loss  by  negligence,  1 10. 

sheriff's  receipt  a  discharge,  127. 

sheriff  as  agent,  132. 

surplus  property  returned  to  defendant,  109. 

summoning  sheriff's  jury,  134. 

trial  by  sheriff's  jury,  131. 

verdict  of  sheriff's  jury  no  protection  to  ofificer,  133. 

void  levy,  93. 

void  levy  on  insolvent's  property,  94. 

waiver  of  warehouseman's  lien,  102. 

what  may  be  levied  upon,  92. 

what  constitutes  a  valid  levy,  96. 

what  the  return  should  contain,  141. 

when  garnishment  not  a  lien,  125. 

preferred  labor  claims,  209. 

payment  of  mortgage,  before  attachment,  167. 

when  and  what  force  may  be  used,  91. 

ATTACHMENT  ON  REAL  ESTATE, 
directions  to  officer  in  writing,  75, 
effect  of  new  summons  on  writ,  62. 
how  attachment  may  be  released,  83. 
how  property  must  be  attached,  76. 
how  to  attach  fixtures  on  realty,  77. 
instructions  to  sheriff,  74. 
irregularity  in  issuance  of  writ,  68. 
liability  of  officer  on  void  judgment,  66. 
liability  of  party  enforcing  void  judgment,  67. 
may  be  levied  before  service  of  summons,  64. 
object  of  the  writ,  60. 
on  contract  not  due  in  this  State,  70. 
posting  copy  on  real  estate,  80. 
right  to  intervene,  71. 
return  of  attachment,  84. 
service  on  occupant,  78. 
service  on  third  party,  79. 
sufficiency  of  sureties,  73. 
void  writs,  61. 

void  for  want  of  proper  undertaking,  65. 
what  the  writ  must  state,  72. 
where  debt  is  secured  by  mortgage,  63. 
where  debt  not  due,  69. 


INDEX. 


509 


ATTACHMENT  ON   REAL  ESTATE, 

what  constitutes  complete  attachment,  §81. 
when  lien  of  levy  takes  effect,  82. 

ATTACHMENT  OF  FIXTURES,  77. 

ATTACHMENT  OF  GROWING  CROPS,  168, 
how  levied,  170. 
as  personal  property  mortgaged,  167. 

ATTACHMENT  OF  VESSELS,  223. 

ATTACHMENT  RETURN,  84. 

ATTACHMENT  LIEN, 
in  replevin,  51. 
when  takes  effect,  82. 
lien  dependent  on  possession,  100. 
prior  liens,  loi. 
notice  on  real  estate,  80. 
when  garnishment  not  a  lien,  125. 
death  of  defendant  destroys  lien,  138. 

ATTORNEY, 

officer  cannot  act  as,  379. 

ATTORNEY  CANNOT  BIND   CLIENT   FOR    CERTAIN 
FEES,  359. 

AUCTIONEER, 

sheriff  as,  389. 
AUTHORITY, 

arrest  without,  421. 

AUTHORITY  OF  DEPUTY,  112. 

AUTHORITY    OF    OFFICER    IN    LEVYING    ATTACH- 
MENT, 91. 

AVOIDING  SERVICE  OF  SUMMONS,  9. 


BAIL, 

deposit  of  in  arrest  and  bail,  34. 
surrender  by,  30. 
exceptions  to  sureties,  32. 
justification  of  sureties,  33. 

BENCH  WARRANT, 
service  of,  431. 

BIDDING  AT  SALE,  216. 


5IO 


INDEX. 


BIDDER  AT  SALE, 

refusing  to  pay,  §  218. 
recovery  from,  243. 

BONDS  OF  INDEMNITY,  48,  130,  191,  192, 

conditions  of,  348. 
BOND    TO    INDEMNIFY    OFFICER    FOR  UNLAWFUL 

ACT,  345- 
BREAKING  DOORS  IN  ARREST,  407. 
BUYING  CLAIMS  PROHIBITED,  383. 

CARE  OF  PROPERTY  IN  REPLEVIN,  41. 
CARRYING  ARTICLES  TO  PRISONERS,  419, 
penalty  for,  419. 

CAVEAT  EMPTOR, 

doctrine  of,  242. 

CERTIFICATES  OF  SALE,  235,  251, 
purchaser  entitled  to,  220. 
title  under,  235. 

CHANGE  OF  VENUE— fees  in,  364. 

CHATTEL  MORTGAGES,  167,  168,  169, 
payment  of  before  attachment,  167. 

CHOICE  IN  EXEMPTIONS, 
debtor  limited  to,  148. 

CHOSES  IN  ACTION, 
sale  of,  221. 

CIVIL  PROCESS, 
prisoners  on,  461. 

CIVIL  ACTIONS, 

arrests  in,  23. 

order  of  arrest  in,  24. 

service  of  order  of  arrest  in,  27. 

militia  exemptions  from  arrest  in,  390. 

expenses  for  support  of  defendant  in,  28. 

CLAIM  FOR  LABOR,  209. 

CLAIM  OF  EXEMPTION  BEFORE  SALE,  161, 
debtor  must  claim  within  reasonable  time,  155. 


INDEX.  5  I  I 

CLAIM  OF  EXEMPTION  BEFORE  SALE, 
debtor  limited  to  choice  in,  §  148. 
insufficient  claim,  157. 
delay  in  claiming,  156. 

CLAIM  BY  THIRD  PERSONS, 

in  claim  and  delivery,  46. 
under  attachment,  130. 
under  execution,  191. 

CLAIM  AND  DELIVERY, 

affidavit  and  order  to  sheriff,  37. 

attachment  lien  in  replevin,  51. 

care  of  property  in  replevin,  41. 

claim  by  third  person,  46. 

correction  of  valuation  of  property,  49. 

how  property  taken  when  concealed,  45. 

indemnity  bonds,  48. 

justification  and  retaking  property,  42. 

notice  of  justification,  44. 

officer  responsible  until  sureties  justify,  43. 

property  lost  through  act  of  God,  50. 

sheriff  liable  for  taking  property  of  stranger,  47. 

taking  the  property,  38. 

what  is  not  a  particular  description  of  property,  40. 

who  cannot  maintain  replevin,  39. 

CLASSIFICATION  OF  PRISONERS, 

in  county  jails,  452. 

CLIENT, 

cannot  be  bound  by  attorney  for  certain  fees,  359. 

CLOUD  ON  TITLE,  252, 
of  homestead,  254. 

COMMISSIONS  ON  EXECUTION,  360. 

COMPLAINT, 

receipt  of  with  summons,  3, 

COMPLAINT  IN  ACTION  FOR  FEES,  363. 

COMPLETE  ATTACHMENT, 

what  constitutes,  81. 

COMPUTING  TIME,  393. 
CONCEALED  WITNESS,  437. 
CONDITIONS  OF  INDEMNITY  BOND,  348. 


512  INDEX. 

CONDUCTING  SALES, -§217. 

CONFISCATIONS, 
void,  386. 

CONDUCTING  BUSINESS  IN  ATTACHMENT,  iii. 

CONSTABLES, 

deputy,  378. 

principal  liable  for  acts  of  deputy,  353. 

COPIES, 

fees  for,  366. 

posting  on  real  estate,  80. 
service  of  on  occupant,  78. 
service  of  on  third  party,  79. 

CORPORATIONS, 

service  of  summons  on,  7. 
proceedings  against,  247. 

COSTS  OF  APPEAL  IN  REDEMPTION,  283. 

COUNTY, 

property  of  inhabitants  of,  174. 

COUNTY  JAIL, 

by  whom  kept  and  for  what  used,  450. 

guard  for,  459. 

must  receive  all  prisoners  committed,  460. 

prisoners  to  be  classified,  452. 

prisoners  must  be  confined,  453. 

prisoners  on  civil  process,  461. 

prisoners  required  to  labor,  462. 

removal  in  case  of  fire,  456. 

removal  in  case  of  pestilence,  457. 

rooms  required  in,  451. 

service  of  papers  on  prisoners  in,  458, 

United  States  prisoners,  454. 

when  jail  of  contiguous  county  may  be  used,  455. 

COUNTY  GOVERNMENT  BILL, 

duties  of  officers  in,  384. 

COUNSEL, 

prisoners  entitled  to,  415. 

COURT, 

sales  by  order  of,  128. 
fees  allowed  by,  359. 


INDEX.  513 

COURT-ROOMS, 

sheriff  to  provide,  §  385. 
COURT-MARTIAL,  391. 
CREDITORS, 

rights  of  in  redemption,  277. 
CROPS, 

how  attached,  170. 
CUSTODY  OF  PROPERTY,  97,  98. 
CUSTODY  OF  LAW, 

property  in,  165. 

DEATH, 

of  defendant  destroys  attachment  hen,  138. 
DAMAGES, 

measure  of,  356. 
DEATH  OF  PARTY, 

execution  after,  194. 
DEBT, 

imprisonment  for,  22. 

wife  not  hable  for  husband's,  200. 

DEBTOR, 

earnings  of  judgment,  153. 
claim  of  exemption,  148,  155. 

DECEDENT, 

redemption  of  real  estate  of,  281. 
DEEDS, 

of  trust,  attachable  interest  in,  163. 

sheriff's  deed,  289. 

by  deputy,  301. 

when  mandamus  will  not  compel  sheriff  to  make,  245. 

DEFECT  IN  SHERIFF'S  BOND,  330. 

DEFENSE  IN  ACTION  FOR  NEGLECT,  333. 

DEFENDANT    MAY    REDEEM    AFTER    HE  HAS  CON- 
VEYED, 266. 

DEFICIENCY  ON  JUDGMENT  IN  REDEMPTION,  269. 

DELAY, 

in  attachment,  87. 

in  execution,  201. 

in  making  arrest,  416. 

in  claiming  exemption,  156. 

33 


SH 


INDEX. 


DEPOSIT  OF  BAIL, 

in  arrest  and  bail,  §  34. 

DEPUTY  CONSTABLES,  378, 
principal  liable  for  acts  of,  353. 

DEPUTY  SHERIFF, 

authority  of,  1 12. 

deed  by,  301. 

return  of,  not  made  in  name  of  sheriff,  15. 

DEMAND  FOR  PROPERTY  WRONGFULLY  TAKEN,  328. 

DEMAND  ON  GARNISHEE,  203. 

DERELICTION  OF  OFFICER  A  MISDEMEANOR,  380. 

DISARMING  PRISONERS,  408. 

DISPUTED  LABOR  CLAIMS  UNDER  EXECUTION,  209. 

DISSECTIONS, 

sheriff  to  give  dead  bodies  to  physicians,  387. 

DISSOLVING  ATTACHMENT, 

when  judgment  for  defendant,  137. 
death  of  defendant,  138. 

DOCTRINE  OF  CAVEAT  EMPTOR,  242. 

DURESS  OF  GOODS,  340. 

DUTIES  OF  OFFICERS  UNDER  ACT  OF  1883,  384. 

DUTIES  OF  SHERIFFS  AND  CONSTABLES, 

aid  to  wrecked  vessels,  388. 

arrests  for  fraud  and  torts,  396. 

arrest  without  warrant,  399. 

assaults  by  officers,  422. 

carrying  articles  to  prisoners,  419. 

computing  time,  393. 

deputy  constables,  378. 

dereliction  a  misdemeanor,  380. 

duties  of  officers  under  act  of  1883,  384. 

escapes  from  jail,  418. 

food  and  lodging  for  juries,  425. 

gambling,  427. 

gratuities  prohibited,  381. 

how  arrest  is  made,  405. 

how  warrant  executed  in  another  county,  410. 

inhumanity  to  prisoners,  426. 

injuring  jails,  428. 

intruders  on  public  lands,  392. 


INDEX.  515 

DUTIES  OF  SHERIFFS  AND  CONSTABLES, 

jurisdiction  of  offenses,  §  430. 

liability  on  unfinished  process,  374. 

liability  for  delay,  416. 

making  contracts  and  buying  claims,  383. 

making  arrests  without  authority,  421. 

militia  exemptions  from  arrest,  390. 

name  of  defendant  in  warrant,  409. 

night  time  defined,  404. 

the  office  of  sheriff,  372. 

when  ofiicer  may  hold  over,  375. 

officer  cannot  act  as  attorney,  379. 

offense  triable  in  another  county,  413. 

officer  making  arrest  may  summon  aid,  400. 

penalty  for  receiving  illegal  fees,  382. 

process  of  court-martial,  391. 

prisoner  entitled  to  counsel,  415. 

proceeding  before  the  magistrate,  412. 

prisoners  brought  from  other  counties  as  witnesses,  424. 

refusing  to  aid  officers,  423. 

refusing  to  receive  prisoners,  420. 

removal  from  office,  429. 

retaking  after  escape,  414. 

rescuing  prisoners,  417. 

service  of  bench  warrant,  431. 

sheriff's  notice  to  sureties,  398. 

sheriff  to  provide  court-rooms,  385. 

sheriff  to  give  dead  bodies  to  physicians,  387. 

sheriff  as  auctioneer,  389. 

suppression  of  riots,  373. 

taking  weapons  from  prisoners,  408. 

taking  prisoner  before  magistrate,  411. 

the  fee  book,  376. 

trespass  by  deputy,  395. 

void  confiscations,  386. 

when  act  falls  on  holiday,  394. 

when  prisoner  may  not  be  handcuffed,  397. 

when  warrant  must  be  shown,  401. 

when  arrest  may  be  made  at  night,  402. 

when  arrest  cannot  be  made  at  night,  403. 

when  force  may  be  used,  406. 

when  doors  may  be  broken,  407. 

EARNINGS  OF  JUDGMENT  DEBTOR,  153. 

EARNINGS  OF  WIFE  NOT  LIABLE  FOR  HUSBAND'S 
DEBTS,  200. 

EFFECT  OF  QUASHING  EXECUTION,  222. 

ENJOINING  JUSTICES'  JUDGMENTS,  182. 


5l6  INDEX. 

ERASURES  IN  RETURNS,  §21. 

ESCAPES, 

from  jail,  418. 

retaking  prisoner  after,  414. 
sheriff  liable  for,  35. 
aiding  prisoners  to,  417. 

EXAMINATION  OF  GARNISHEE,  122. 

EXCESSIVE  LEVY,  108. 

EXCEPTION  TO  SURETIES, 

in  arrest  and  bail,  32. 

EXECUTION  NOT  VOID,  190. 

EXECUTION  AFTER  DEATH  OF  PARTY,  194. 

EXECUTION  FOR  FEES,  371. 

EXECUTION  WHEN  PROPERTY  MAY  BE  LEVIED 
ON  FOR  PURCHASE  PRICE,  148. 

EXECUTION— LEVY  ON  PERSONAL  PROPERTY, 

assignee's  lien,  204. 

attachment  of  vessels,  223. 

attachment  of  growing  crops,  168. 

claim  before  sale,  161. 

chattel  mortgages.  169. 

delay  in  service  of  writ  inexcusable,  201. 

debtor  must  claim  within  reasonable  time,  155. 

debtor  limited  to  choice  in  exemption,  148. 

earnings  of  judgment  debtor,  153. 

effect  of  quashing  an  execution,  222. 

enjoining  justices' judgments,  182. 

exempt  property  may  be  levied  on  for  purchase  price,  148. 

exemption  for  farmers,  148. 

exemption  for  maimed  persons,  148. 

exemption  for  mechanic,  notary  and  physician,  148. 

exemption  for  miners,  148. 

exemption  for  laborer,  148. 

exemption  a  personal  right,  154. 

execution  when  judgment  not  entered,  180. 

executions  not  void,  190. 

execution  after  death  of  a  party,  194. 

fixtures,  176. 

garnishment  and  demand,  203. 

grain  on  homestead  land,  160. 

how  to  determine  what  is  exempt  from  execution,  148. 

how  growing  crops  are  attached,  170. 

how  the  writ  is  executed,  205. 


INDEX.  5  I  7 

EXECUTION— LEVY  ON  PERSONAL  PROPERTY, 

how  sheriff  should  apply  money  on  execution,  §  208. 

how  sale  should  be  conducted,  217. 

indemnity  bonds  and  sheriff's  jury,  191. 

insufficient  claim,  157. 

interest  under  deed  of  trust,  163. 

interest  of  purchaser  at  judicial  sale,  175. 

judgment  payable  in  money,  219. 

judgment  after  filing  homestead,  183. 

justices'  court  executions,  147. 

laborer,  what  is,  151. 

laborer  or  teamster,  152. 

law  of  exemptions,  178. 

levy  on  partnership  property,  202. 

levy  and  sale  of  personal  property,  210. 

levy  and  sale  of  franchise,  198. 

liberal  construction  of  exemption  law,  148. 

mining  claim  liable  to  execution,  164. 

money  deposit  to  release  attachment,  166. 

necessary  household  furniture,  148. 

not  open  to  collateral  attack,  189. 

notice  of  preferred  labor  claims,  209. 

patent  right  attachable,  173. 

personal  property  mortgaged,  167. 

penalty  for  refusing  to  levy,  206. 

penalty  for  selling  without  notice,  211. 

property  in  custody  of  law,  165. 

property  held  as  security,  171.  ■       . 

property  of  inhabitants  of  county,  174. 

power  of  a  justice  over  his  judgments,  181. 

property  and  property  rights  liable  to  levy,  196. 

property  of  wife  not  liable  for  husband's  debts,  200. 

preferred  labor  claims,  209. 

preventing  bidding  at  sale,  216. 

purchaser  entitled  to  certificate  of  sale.  220. 

regularity  of  writ  not  protection  to  officer,  143. 

receiving  the  writ,  195. 

redemption  of  franchise,  199. 

re-sale  when  bidder  refuses  to  pay,  218. 

sale  of  road,  172. 

sales  when  valid  and  when  void,  188. 

sale  of  choses  in  action,  221. 

sale  of  vessel  and  payment  of  proceeds,  224. 

senior  and  junior  writs,  207. 

seizure  and  sale  of  promissory  note,  215. 

sheriff  cannot  sell  when  stay  is  ordered,  162. 

staying  execution,  185. 

stallion  not  exempt,  159. 

teamster,  what  is,  149. 


5l8  INDEX. 

EXECUTION— LEVY  ON  PERSONAL  PROPERTY, 

teamster,  what  is  not.  §  150. 

teamster  or  laborer,  152. 

title  the  purchaser  secures,  213. 

unreasonable  delay  in  claiming-  exemption,  156. 

void  and  voidable  writs,  144. 

void  as  to  defendants  not  served  with  summons,  145. 

void  judi^ment  and  levy,  184. 

within  what  time  execution  may  issue,  179. 

when  a  house  is  personal  property,  148. 

what  constitutes  a  reasonable  time,  158. 

when  fixtures  become  personal  property,  177. 

when  voidable,  186. 

when  amendable,  187. 

what  the  writ  must  require,  193. 

when  sale  should  be  postponed,  212. 

when  sherifif  may  levy  on  realty  instead  of  personal  property, 

214. 
the  writ,  142. 
writ  cannot  be  received  on  Sunday,  146. 

EXECUTION— LEVY  ON  REAL  PROPERTY, 
certificate  of  sale,  251. 
cloud  on  title,  252. 
cloud  on  homestead  title,  254. 
doctrine  of  caveat  emptor,  242. 
how  homestead  may  be  levied  upon,  256. 
insufficient  notice  of  sale  no  defense  to  purchaser,  238. 
interests  in  land  attachable,  226. 
irregularities  of  sale,  231. 
irregular  levy,  233. 
judgment  no  lien  on  homestead,  259, 
levy  on  real  property,  225. 
notices  of  sale,  227. 
proceedings  against  corporations,  247. 
purchaser  at  sheriff's  sale,  234. 
recovery  from  bidder  at  sale,  243. 
return  of  writ,  260. 
relief  of  purchasers,  237. 
relief  in  discretion  of  court,  239. 
sale  without  notice,  228. 
sale  of  homestead,  257. 
setting  aside  sheriff''s  sale,  230. 
sheriff's  sales  not  credit  sales,  236. 
time  of  re-sale,  244. 

title  of  purchaser  of  leasehold  interest,  246. 
title  of  purchasers  generally,  248. 
title  not  dependent  on  sheriff's  return,  249. 
title  under  certificate  of  sale,  235. 


INDEX.  51^ 

EXECUTION— LEVY  ON  REAL  PROPERTY, 

void  levy  on  homestead,  §  253. 

when  owner  is  estopped  from  asserting  title,  250. 

when  sale  may  be  enjoined,  255. 

when  judgment  not  a  lien,  258. 

when  and  how  real  property  must  be  sold,  232. 

when  plaintiff"  cannot  recover  amount  of  bid,  240. 

when  misrepresentation  used  at  sale,  241. 

when  mandamus  will  not  lie  to  compel  sheriff  to  make  deed, 

245- 
EXEMPT  PROPERTY, 

claim  of  in  reasonable  time,  155. 

debtor  limited  to  choice,  148. 

earnings  of  judgment  debtor,  153. 

may  be  levied  on  for  purchase  price,  148. 

of  farmers,  148. 

of  maimed  persons,  148. 

of  household  furniture,  148. 

of  mechanic,  148. 

of  notary,  148. 

of  physician,  148. 

of  miners,  148. 

of  laborers,  148. 

how  to  determine  what  is,  148. 

liberal  construction  of  exemption  law,  148. 

EXEMPTION  FROM  ARREST,  25,  390. 

EXEMPTION  FROM  EXECUTION, 

a  personal  right,  154. 

how  to  determine  what  is  exempt,  148-178. 

for  farmers,  148. 

for  maimed  persons,  148. 

for  mechanics,  148. 

for  notaries,  148. 

for  physicians,  148. 

for  miners,  148. 

for  laborers,  148,  151. 

for  teamsters,  149,  152. 

necessary  household  furniture,  148. 

not  exempt  when  for  purchase  price,  148. 

claim  before  sale,  161. 

debtor  limited  to  choice  in,  148. 

debtor  must  claim  within  reasonable  time,  155. 

earnings  of  judgment  debtor,  153. 

EXPENSES  OF  OFFICERS, 
in  arrest  and  bail,  28. 
in  bringing  back  fugitives  from  justice,  464. 


520  INDEX. 

EXPIRATION  OF  TERM,  §372. 

FALSE  RETURN, 

on  writ  of  assistance,  310. 

FARMERS. 

exemptions  from  execution  for,  148. 

FEES  ALLOWED  BY  COURT,  359. 
FEES, 

actions  for,  363. 

FEE  BOOK,  376. 

FEES  FOR  COPIES,  366. 

FEES  IN  CHANGE  OF  VENUE,  364. 

FEES  IN  HABEAS  CORPUS,  365. 

FEES, 

prepayment  of,  377. 
FEES, 

attorney  cannot  bind  client  for  certain,  359. 

allowed  by  court,  359. 

commissions  on  execution,  360. 

complaint  in  action  for,  363. 

for  copies,  366. 

for  care  of  court-house,  361. 

in  change  of  venue,  364. 

illegal  fees,  368. 

keeper's  fees,  104. 

in  habeas  corpus  served  without,  59. 

for  official  duties,  367. 

of  witnesses,  372-436. 

officer  may  have  execution  for,  371. 

separate  charges  for  separate  acts,  369. 

mileage  for  conveying  prisoners,  370. 

{See  chapter  on  Sheriffs'  and  Constables'  Fees.) 

FIXTURES, 

what  are,  176. 

how  to  attach  fixtures  on  realty,  77. 

when  become  personal  property,  177. 

FOOD  AND  LODGING  FOR  JURIES,  425. 
FORCE, 

when  may  be  used  in  arrest,  373,  400,  406. 

what  and  when  may  be  used  in  attachment,  91. 


INDEX.  521 


FORECLOSURE, 

sales  under,  §  261. 
title  by  sale  under,  262. 

FOREIGN  SUBPCENA,  448. 

FRANCHISE, 

levy  and  sale  of,  198. 

redemption  of,   199. 

FRAUD, 

arrests  for,  23,  396. 

temporary  exemptions  from  arrest  in,  25. 

fraudulent  transfers,  129. 

{See  Arrest  and  Bail.) 
FUGITIVES  FROM  JUSTICE,  chapter  XXI. 
requisition  for,  464. 
how  requisition  procured,  464. 
officer's  expenses  bringing  back  prisoner,  464. 

FURNITURE, 

necessary  household,   148. 

GAMBLING,  427. 

GARNISHMENT,  120. 

examination  of  garnishee,   122. 

notice  to  garnishee,  121. 

of  stocks,  115. 

of  amount  due  on  homestead,  123. 

liability  of  garnishee,  124. 

when  not  a  lien,  125. 

under  execution,  203. 

GOD, 

property  lost  through  act  of,  50. 

GRATUITIES  PROHIBITED,  381. 
GRAIN  ON  HOMESTEAD  LAND,  160. 

GROWING  CROPS, 

attachment  of,  168. 
how  attached,  170. 
as  personal  property  mortgaged,  167. 

GUARD  FOR  JAIL,  459. 

HABEAS  CORPUS, 
how  served,  55. 


522  INDEX. 

HABEAS  CORPUS, 

return  on,  4^  56. 
warrant  of  arrest,  57. 
when  writ  may  be  served,  58. 
service  without  fees,  59. 

HANDCUFFING  PRISONERS,  397. 

HOLIDAY, 

when  act  falls  on,  394. 
what  are  holidays,  394. 

HOLDING  OVER, 

when  officer  may  hold  over,  375. 

HOMESTEAD, 

cloud  on  title  of,  254. 
garnishment  of  sums  due  on,  123. 
grain  on  homestead  land,  160. 
how  may  be  levied  upon,  256. 
judgment  after  filing,  183. 
void  levy  on,  253. 
judgment  no  lien  on,  259. 
sale  of,  257. 

HOUSE, 

when  it  is  personal  property,  148. 

HOUSEHOLD  FURNITURE, 

exempt  from  execution,  148. 

not  exempt  M'hen  for  purchase  price,  i^ 

HUSBAND'S  DEBTS, 

wife  not  liable  for,  200. 


ILLEGAL  FEES,  368. 
IMPRISONMENT  FOR  DEBT,  22. 

INDEMNITY  BONDS, 

in  claim  and  delivery,  48. 

officer's  right  to  indemnity,  130. 

and  sheriff 's  jury,  191. 

time  takes  effect,  192. 

agreement  to  indemnify  officer,  347. 

for  unlawful  act,  345. 

conditions  of,  348. 

defect  in,  330. 

plaintiff  bound  by  his  bond,  349. 


INDEX.  523 

INFANT, 

service  of  summons  on,  §  6. 

INHABITANTS  OF  COUNTY, 

property  of,  174. 

INHUMANITY  TO  PRISONERS,  426. 

INJURING  JAILS,  428. 

INJUNCTION, 

when  may  be  served,  52. 

how  served,  53. 

when  served  on  sheriff,  54. 

INSOLVENCY, 

void  levy  on  insolvent's  property,  94. 

assignee's  lien,  204. 

how  insolvency  proceedings  affect  attachment,  95. 

INSTRUCTIONS, 

to  sheriff  in  writing,  75. 
in  attachment,  74. 

INTEREST, 

of  purchaser  at  sale,  175. 
under  deed  of  trust,  163. 

INTERESTS   IN   LEASED   PROPERTY   ATTACHABLE, 

117. 

INTERESTS  IN  LAND  ATTACHABLE,  226. 

INTRUDERS  ON  PUBLIC  LANDS,  392. 

IRREGULARITIES  OF  SALE,  231. 

IRREGULARITY  IN  ISSUANCE  OF  ATTACHMENT,  68. 

IRREGULAR  LEVY,  233. 

ISSUANCE  OF  EXECUTION,  179. 

JAIL— chapter  XIX, 
guard  for,  459. 
injuring  jails,  428. 
escapes  from,  418. 

of  contiguous  county  when  may  be  used,  455. 
by  whom  kept  and  for  what  used,  450. 
all  prisoners  committed  must  be  received  in,  460. 
prisoners  to  be  classified  in,  452. 
prisoners  must  be  confined  in,  453. 


524  INDEX, 

JAIL, 

prisoners  on  civil  process  in,  §461. 

prisoners  in  must  be  required  to  labor,  462. 

removal  in  case  of  fire.  456. 

removal  in  case  of  pestilence,  457. 

rooms  required  in,  451. 

service  of  papers  on  prisoners  in,  458. 

United  States  prisoners  in,  454. 

JAILER, 

sheriff  as,  450. 

must  receive  all  prisoners  committed,  460. 

JOINT  TRESPASSERS,  135. 

JUDGMENT  DEBTOR, 

earnings  of,  153. 

must  claim  exemption  within  reasonable  time,  155. 

what  constitutes  reasonable  time,  158. 

unreasonable  delay  in  claiming  exemption,  156. 

insufficient  claim  of,  157. 

when  may  redeem  from  sale,  272. 

not  to  pay  prior  liens  in  redemption,  268. 

JUDGMENT  LIEN, 

subsequent  in  redemption,  271. 

JUDGMENT  NOT  A  LIEN  ON  HOMESTEAD,  259. 

JUDGMENT, 

payable  in  money,  2ig. 

after  filing  homestead,  183. 

power  of  a  justice  over  his,  181. 

against  sheriff,  350. 

when  not  a  lien,  258. 

for  defendant  dissolves  attachment,  137. 

enjoining  justices',  182. 

execution  when  judgment  not  entered,  180. 

levy  on  judgments,  197. 

JUNIOR  WRITS,  207. 

JURIES, 

food  and  lodging  for,  425. 
sheriff's  juries,  131,  133,  134,  191. 

JURISDICTION  OF  OFFENSES,  430. 

JUSTICE, 

fugitives  from,  464. 

FUGITIVES  FROM  JUSTICE— chapter  XXI. 


INDEX.  525 

JUSTICES'  COURTS, 

executions,  §  147. 

power  of  a  justice  over  his  judgments,  181. 
enjoining  justices'  judgments,  182. 
subpcEnas  issued  out  of,  432. 

JUSTIFICATION  OF  OFFICER, 
for  seizure,  339. 

JUSTIFICATION  OF  SURETIES, 

in  arrest  and  bail,  33. 

in  claim  and  delivery,  42. 

notice  of  justification,  44. 

KEEPER'S  FEES,  104. 

{See  chapters  XVI.  and  XXIV.,  on  Sheriffs'  and 
Constables'  Fees.) 

LABOR  FOR  PRISONERS,  462. 

LABORER,  151,  152, 

exemption  from  execution  for,  148. 

LABOR  CLAIMS,  209. 

LAND, 

interests  in  attachable,  226. 
intruders  on  public,  392. 
grain  on  homestead,  160. 

LAW, 

property  in  custody  of,  165. 

LAW  OF  EXEMPTIONS,  178, 

exemption  from  execution  a  personal  right,  154. 

debtor  limited  to  choice,  148. 

debtor  must  claim  exemption  within  reasonable  time,  155^ 

what  constitutes  reasonable  time,  158. 

unreasonable  delay  in  claiming  exemption,  156. 

insufficient  claim,  157. 

LEASED  PROPERTY, 

attachment  of,  117. 

title  of  purchaser  of  leasehold  interest,  246. 

LEVY, 

of  attachment,  96. 
excessive  levy,  108. 
on  real  property,  76,  225. 
on  judgments,  197. 


526  INDEX. 

LEVY, 

on  personal  property  under  execution,  §  210. 

on  real  property  under  execution,  225. 

by  garnishment,  120,  203. 

on  stocks,  115. 

on  partnership  property,  113,  202. 

and  sale  of  road,  172. 

and  sale  of  franchise,  198. 

and  sale  of  promissory  note,  215. 

notice  of  levy,  81. 

void  judgment  and  levy,  184. 

irregular  levy,  233. 

void  levy  on  homestead,  253. 

judgment  not  lien  on  homestead,  259. 

how  homestead  must  be  levied  on,  256. 

authority  of  officer  in  making,  91. 

what  may  be  levied  upon,  92. 

what  constitutes  a  valid  levy,  96. 

when  garnishment  not  a  lien,  125. 

when  force  may  be  used  to,  91. 

may  be  made  before  service  of  summons,  64. 

on  property  for  purchase  price,  148. 

property  rights  liable  to,  196. 

penalty  for  refusing  to,  206. 

LIABILITY, 

of  garnishee,  124. 

of  officer  on  unfinished  process,  374. 

of  officer  for  delay  in  making  arrest,  416. 

of  sheriff's  sureties,  334. 

of  sureties  on  indemnity  bond,  335. 

of  officer  for  illegal  levy,  336. 

of  officer  and  sureties  for  trespass,  343. 

of  officer  on  void  judgment,  66. 

of  party  enforcing  void  judgment,  67. 

of  officer  for  acts  of  deputy,  353. 

of  sheriff  and  sureties  in  arrest  and  bail,  31. 

from  delay,  87. 

of  officer  for  loss  by  negligence,  1 10. 

of  officer  for  detention  of  witness,  443. 

LIBERAL  CONSTRUCTION  OF  EXEMPTION  LAW,  148. 

LIEN  OF  ASSIGNEE  IN  EXECUTION,  204. 

LIEN  OF  ATTACHMENT, 
when  takes  effect,  82. 

dependent  on  possession  in  jiersonal  property,  100. 
destroyed  by  death  of  defendant,  138. 
when  prior  liens  must  be  satisfied,  loi. 


INDEX.  527 

LIEN  OF  ATTACHMENT, 

when  garnishment  not  a  Hen,  ^  125. 

in  replevin,  51. 

notice  on  real  estate,  81. 

LIMIT  OF  TIME  FOR  ACTIONS  AGAINST  OFFICERS, 

326. 

LODGING  AND  FOOD  FOR  JURIES,  425. 

LOSS  BY  NEGLIGENCE,  no. 

LOSS  OF  PROPERTY  THROUGH  ACT  OF  GOD.  50. 

MAGISTRATE, 

taking  prisoners  before,  411. 
proceedings  in  arrest  before  the,  412. 

MAIMED  PERSONS, 

exempt  property  of,  148. 

MAKING  ARREST  WITHOUT  AUTHORITY,  421. 

MANUAL  DELIVERY, 

property  not  capable  of,  116. 

MEASURE  OF  DAMAGES,  356. 

MEANING  OF  SHERIFF'S  DEED, 

how  ascertained,  297. 

MECHANIC, 

exempt  property  in  execution,  148. 

MILEAGE, 

for  conveying  prisoners,  370. 

{See  chapter  XXIV.,  on  Sheriffs'  ayid  Constables'  Fees.) 

MILITIA, 

exemptions  from  arrest,  390. 

MINORS, 

service  of  summons  on,  6. 

MINERS, 

exempt  property  in  execution,  148. 
claim  liable  to  execution,  164. 

MISREPRESENTATIONS  AT  SALE,  241. 

MONEYS  ON  EXECUTION, 

how  applied,  208. 


528  INDEX. 

MORTGAGE, 

of  personal  property,  §  167. 
attachment  where  debt  is  secured  by,  63. 
on  g-rowing-  crops,  167,  168. 
chattel  mortgages,  167,  168,  169. 
rights  of  mortgagor  in  redemption,  280. 
mortgage  on  personal  property  must  be  satisfied  before  at- 
tachment, 167. 

NAME  OF  DEFENDANT  IN  WARRANT,  409. 

NAME  OF  DEFENDANT  IN  SUMMONS,  10. 

NECESSARY  HOUSEHOLD  FURNITURE,   148, 
exempt  from  execution,  148. 
not  exempt  when  for  purchase  price,  148. 

NEGLIGENCE, 

liability  of  officer  from  delay,  87. 

officer  liable  for,  1 10. 

plaintiff's  right  to  prompt  service,  i. 

inexcusable  delay,  18. 

liability  of  sheriff  and  sureties,  31. 

liability  for  escape,  35. 

defense  in  action  for,  333. 

NIGHT, 

when  arrest  may  be  made  at,  402. 
when  arrest  cannot  be  made  at,  403. 
night  time  defined,  404. 

NOTARY  PUBLIC, 

exempt  property  under  execution,  148. 

NOTE, 

seizure  and  sale  of,  215. 

NOTICE, 

to  sureties,  329,  398. 

to  garnishee,  121. 

of  justification  in  arrest  and  bail,  33. 

of  justification  in  claim  and  delivery,  44. 

of  attachment  of  real  estate,  81. 

penalty  for  selling  without  notice,  211. 

of  sale  under  execution,  227. 

sale  without  notice,  228. 

when  party  not  aggrieved  without  notice  of  sale,  229. 

insufficient  notice  no  defense,  238. 

of  preferred  labor  claims,  209. 


INDEX.  529 


OBJECT  OF  WRIT  OF  ATTACHMENT,  ^5  60. 

OBSTRUCTING  OFFICER, 

retaking  goods  from  officer,  106. 
penalty  for,  107. 

OCCUPANT  OF  REAL  ESTATE, 

service  on,  78. 

OFFER  OF  REWARD,  465, 

actions  to  recover  reward,  467. 

OFFICE  OF  SHERIFF,  372, 
original  writs  to  be  kept  in,  90. 

OFFICER, 

removal  of,  429. 

actions  against  for  neglect,  333. 

actions  against,  326-358. 

principal  liable  for  acts  of  deputy,  353. 

assaults  by,  422. 

refusing  to  aid,  423. 

to  render  aid  to  wrecked  vessels,  388. 

making  arrest  may  summon  aid,  400. 

cannot  act  as  attorney,  379. 

fee  book  of,  376. 

power  of  in  serving  search  warrant,  463. 

right  to  indemnity,  130. 

duties  of  under  Act  of  1883,  384. 

authority  of  in  levying,  91. 

authority  to  conduct  business  in  attachment,  iii. 

authority  of  deputy,  112. 

penalty  for  obstructing,  107. 

property  when  attached  in  view  of,  99. 

responsibility  of  in  serving  process,  86. 

liable  for  loss  by  negligence,  1 10. 

receipt  of — a  discharge,  127. 

as  agent,  132. 

directions  to  in  writing,  75. 

instructions  to  officer,  74. 

liability  of  officer  on  void  judgment,  66. 

dereliction  of  officer  a  misdemeanor,  380. 

liability  of  on  unfinished  process,  374. 

when  may  hold  over,  375. 

penalty  of  for  receiving  illegal  fees,  382. 

notice  to  sureties,  329,  398. 

regularity  of  writ  no  protection  to,  143. 

cannot  sell  when  stay  is  ordered,  162. 

34 


530 


INDEX. 


OFFENSES, 

jurisdiction  of,  §  430. 

triable  in  another  county,  413. 

ORDER  OF  ARREST, 

when  will  issue,  23. 
what  it  must  require,  24. 
service  of,  27. 
void  order  of  arrest,  26. 

ORDER  OF  COURT, 

Sales  by,  128. 

PARTNERSHIP, 

attachment  of  partnership  property,  113. 
levy  upon  partnership  property,  202. 

PATENT  RIGHT  ATTACHABLE,  173. 
PAYMENTS   IN  REDEMPTION,  267,  284. 
PAYMENT   OF   CHATTEL   MORTGAGE   BEFORE   AT- 
TACHMENT, 167. 
PENALTY  FOR  AIDING  PRISONERS  TO  ESCAPE,  417. 

PENALTY, 

for  carrying  articles  to  prisoners,  419. 
for  refusing  to  levy,  206. 
for  receiving-  illegal  fees,  382. 
for  not  paying  over  moneys,  327. 
for  obstructing  an  officer,  107. 
for  selling  without  notice,  211. 

PERISHABLE  PROPERTY, 

sale  of,  126. 

PERSONAL  RIGHT, 
exemption  a,  154. 

PERSONAL  PROPERTY, 

attachment  of,  85, 

in  custody,  98. 

not  capable  of  manual  delivery,  116. 

when  attached  must  be  in  view,  99. 

must  be  taken  into  custody,  97. 

removal  of,  105. 

release  of,  139. 

sale  of  perishable,  1 26. 

sales  of  prohilMted  under  attachment,  103. 


INDEX.  531 

PERSONAL  PROPERTY, 

when  mortgaged  cannot  be  attached  without  payment  of  mort- 
gage, §  167. 
when  force  may  be  used  in  attaching,  91. 
demand  for  when  wrongfully  taken,  328. 
duress  of  goods,  340. 
levy  and  sale  of,  210. 
when  a  house  is,  148. 
when  fixtures  become,  177. 

PHYSICIANS, 

exempt  property  of,  148. 

when  to  receive  bodies  of  prisoners,  387. 

PLAINTIFF  BOUND  BY  HIS  BOND  TO  OFFICER,  349. 

PLEDGE  OF  GOODS, 

rights  of  pledge,  119. 

POSTING  NOTICE  ON  PROPERTY  ATTACHED,  80. 

POSTPONEMENT  OF  SALE,  212. 

POWER  OF  A  JUSTICE  OVER    HIS  JUDGMENTS,  181. 

PREFERRED  LABOR  CLAIMS,  209. 

PREPAYMENT  OF  FEES,  362. 

PREVENTING  BIDDING  AT  SALE,  216. 

PRIOR  LIENS,  loi. 

judgment  debtor  need  not  pay  in  redemption,  268. 

PRINCIPAL  LIABLE  FOR  ACTS  OF  DEPUTY,  353. 

PRISONERS, 

receiving,  417. 

to  be  classified  in  jails,  452. 

must  be  confined,  453. 

taking  weapons  from,  408. 

of  United  States,  454. 

removal  of  in  case  of  fire,  456. 

removal  of  in  case  of  pestilence,  457. 

service  of  papers  on,  458. 

on  civil  process,  461. 

required  to  labor,  462. 

inhumanity  to,  426. 

mileage  for  conveying,  370. 

carrying  articles  to,  419. 

refusing  to  receive,  420. 

brought  from  other  counties  ;is  witnesses,  424. 


532  INDEX. 

PRISONERS, 

requisition  for  fugitives  from  justice,  §  445. 

how  requisition  procured,  464. 

when  may  not  be  hand-cuffed,  397. 

taking  before  magistrate,  411. 

entitled  to  counsel,  415. 

dead  bodies  of,  387. 

retaking  after  escape,  414. 

penalty  for  aiding  to  escape,  417. 

penalty  for  carrying  articles  to  prisoners,  419. 

PROCESS  OF  COURT-MARTIAL,  391. 

PROCEEDINGS  AGAINST  CORPORATIONS,  247. 

PROCEEDS  OF  SALE, 
application  of,  208. 
preferred  labor  claims,  209. 

PROMISSORY  NOTE, 
sale  of,  215. 

PROMPT  SERVICE  OF  PROCESS,  i. 

PROPERTY, 

attachment  of  partnership,  113. 

lost  through  act  of  God,  50. 

attachment  of  personal,    85-141. 

attachment  of  real,  76. 

in  custody  in  attachment,  98. 

not  capable  of  manual  delivery,  116. 

released  by  undertaking,  136. 

when  attached  must  be  within  view,  99. 

personal  must  be  taken  into  custody,  97. 

removal  of  attached  personal,  105. 

release  of  personal,  139. 

surplus  returned  to  defendant,  109. 

sales  of  personal  prohibited  in  attachment,  103. 

chattel  mortgage  must  be  paid  before  attachment,  167. 

when  force  may  be  used  in  attaching,  91. 

how  to  attach  fixtures  on  realty,  77. 

posting  copy  of  writ  on  real,  80. 

care  of  in  replevin,  41. 

claim  of  by  third  person,  46. 

correction  of  valuation  of  in  replevin,  49. 

how  taken  when  concealed,  45. 

retaking  in  replevin,  42, 

taking  in  replevin,  38. 

of  stranger  in  replevin,  47. 

description  of  in  replevin,  40. 


INDEX.  533 

PROPERTY, 

in  custody  of  the  law,  ^  165. 

redemption  of  real  estate  of  decedent,  281, 

duress  of  goods,  340. 

levy  on  partnership,  202. 

held  as  security,  171. 

of  inhabitants  of  county,  174. 

rights  liable  to  levy,  196. 

of  wife  not  liable  for  husband's  debts,  200. 

when  a  house  is  personal,  148. 

when  and  how  real  property  must  be  sold,  232. 

PROPERTY  OF  WIFE, 

not  liable  for  husband's  debts,  220. 

PROPERTY  HELD  AS  SECURITY,  171. 

PROPERTY  IN  CUSTODY  OF  LAW,  165. 

PROPERTY  OF  INHABITANTS  OF  COUNTY,  174. 

PROPERTY  RIGHTS  LIABLE  TO  LEVY,  196. 

PROPERTY  LOST  THROUGH  ACT  OF  GOD,  50. 

PROTECTION  TO  OFFICER  UNDER  WRIT,  143. 

PUBLIC  LANDS, 
intruders  on,  392. 

PURCHASE  PRICE, 

property  may  be  levied  on  for,  148. 

PURCHASER'S  RIGHTS  IN  REDEMPTION,  279. 

PURCHASER, 

title  of  leasehold  interest  of,  246. 
title  of  purchasers  generally,  248. 
relief  of,  237. 
at  sheriff's  sale,  234. 

QUASHING  EXECUTION,  222. 

REAL  PROPERTY, 

when  and  how  sold,  232. 

REASONABLE  TIME, 

claiming  exemption  in,  158. 

RECOVERY  FROM  BIDDER  AT  SALE,  243. 


534  INDEX. 

RECEIPT  OF  SUMMONS,  §  2. 

RECEIPT  OF  SHERIFF  A  DISCHARGE,  127. 

RECEIPT  OF  WRIT  ON  SUNDAY,  146. 

RECEIVING, 

illegal  fees,  382. 
writs,  85,  195. 

RECITALS  IN  SHERIFF'S  DEED,  293. 

REDEMPTION, 

change  from  real  to  personal  property,  282. 

costs  of  appeal  in  redemption,  283. 

how  redemptioner  may  redeem,  273. 

judgment  debtor  not  to  pay  prior  liens,  268. 

other  redemptioners,  274. 

payments  in  redemption,  284. 

payment  under  protest,  288. 

power  of  sheriff  in  redemption,  263. 

redemptioners,  265,  274. 

redemption  where  tenants  in  common,  276. 

redemption  of  real  estate  of  a  decedent,  281. 

redemption  of  franchise,  199. 

rents  and  profits  in  redemption,  278. 

rights  of  creditors,  277. 

rights  of  purchasers,  279. 

rights  of  mortgagor,  280. 

redemption  in  treasury  notes,  285. 

status  of  redemptioner,  270. 

subsequent  judgment  lien,  271. 

sheriff's  deed,  289,  and  chapter  XII. 

though  defendant  has  conveyed  to  another,  he  may  redeem, 
266. 

time  of  and  payment  in  redemption,  267. 

when  title  passes,  264. 

who  may  redeem,  265. 

when  deficiency  on  judgment  need  not  be  paid  in  redemp- 
tion, 269. 

when  judgment  debtor  or  redemptioner  may  redeem,  272. 

who  cannot  redeem,  275. 

what  money  sheriff  may  receive  in  redemption,  286. 

withdrawing  redemption  money  defeats  redemption,  287. 

REFUSING  TO  LEVY, 
penalty  for,  206. 

REFUSING  TO  AID  OFFICER,  423. 

REFUSING  TO  RECEIVE  PRISONERS,  420. 


INDEX.  535 

REFUSING  TO  PAY  PURCHASE  MONEY,  §  218. 

RELEASE, 

of  real  property,  83. 

of  personal  property,  139, 

by  undertaking,  136. 

money  deposit  for,  166. 

of  sheriff  by  stipulation,  355- 

RELIEF, 

of  purchasers,  237. 

in  discretion  of  court,  239. 

REMEDY  AGAINST  SHERIFF,  331. 

REMOVAL, 

of  attached  property,  105. 
from  office,  429. 

of  prisoners  in  case  of  fire,  456. 
in  case  of  pestilence,  457. 

RENTS  AND  PROFITS  IN  REDEMPTION,  278. 

REPLEVIN, 

{See  Claim  and  Delivery),  chapter  III. 

REQUISITION    FOR    FUGITIVES   FROM  JUSTICE,  464. 

RE-SALE  UNDER  EXECUTION,  218,  244. 

RESCUING  PRISONERS,  417. 

RETAKING  PRISONER  AFTER  ESCAPE,  414. 

RETURN  OF  SHERIFF, 
on  attachment,  84-140. 
of  deputy  not  made  in  name  of  sheriff,  15. 
of  summons  when  not  served  by  officer,  5,  16. 
not  traversable,  17. 

when  summons  should  be  returned,  19. 
erasures  in,  21. 

pri77ia  facie  evidence  of  fact  stated  therein,  13. 
on  real  estate  attachment,  140. 
what  return  should  contain,  141. 
title  of  purchaser  not  dependent  on,  249. 
of  execution,  260. 
on  habeas  corpus,  56. 
on  bench  warrant,  463. 
false  return  on  writ  of  assistance,  310. 
{See  Forms  of  Returns.) 


536  INDEX. 

REWARDS, 

offer  of  binding,  §  465. 
when  not  earned,  466. 
actions  to  recover,  467. 

RIGHT  TO  INTERVENE,  71. 

RIGHT  TO  INDEMNITY, 

officer's,  130. 

RIGHT  TO  PROMPT  SERVICE, 
plaintiff's,  i. 

RIGHTS, 

of  creditors  in  redemption,  277. 
of  pledge,  119. 

of  purchasers  in  redemption,  279. 
of  mortgagor  in  redemption,  280. 

RIOTS, 

suppression  of,  373. 

ROAD, 

sale  of,  172. 

ROOMS  REQUIRED  IN  JAILS,  451. 


SALES, 

prohibited  under  attachment,  103. 

claim  of  exemption  before,  161. 

cannot  be  made  when  stay  is  ordered,  162. 

of  a  road,  172. 

interest  of  purchaser  at  sale,  175. 

when  valid  and  when  void,  188. 

of  franchise,  198. 

penalty  of  sale  without  notice,  211. 

when  should  be  postponed,  212. 

of  promissory  note,  215. 

preventing  bidding  at,  216. 

how  should  be  conducted,  217. 

bidder  at  refusing  to  pay,  218. 

re-sale  when  bidder  refuses  to  pay,  243. 

of  choses  in  action,  221. 

of  vessels,  224. 

notices  of  under  execution,  227. 

without  notice,  228. 

when  party  not  aggrieved  without  notice  of,  229. 

setting  aside  sheriff's  sale,  230. 

irregularities  of,  231. 


INDEX.  537 

SALES, 

of  personal  property,  §  210. 

when  and  how  real  property  must  be  sold,  232. 

purchaser  at  sheriff's  sale,  234. 

title  under  certificate  of,  235. 

sheriff's  sales  not  credit  sales,  236. 

relief  of  purchaser  at,  237. 

insufficient  notice  of,  238. 

relief  from  irregular  sale  in  discretion  of  court,  239. 

when  misrepresentation  used  at  sale,  241. 

recovery  from  bidder  at  sale,  243. 

time  of  re-sale,  244. 

title  of  purchaser  of  leasehold  interest,  246. 

certificate  of  sale,  235,  251. 

when  sale  may  be  enjoined,  255. 

of  homestead,  256,  257. 

under  foreclosure,  261. 

redemption  from,  263-288. 

by  order  of  court,  128. 

SEARCH  WARRANTS, 

how  served,  463. 

who  may  serve,  463. 

power  of  officer  in  serving,  463. 

when  may  be  served,  463. 

when  must  be  returned,  463. 

SECURITY, 

property  held  as,  171. 

SENIOR  AND  JUNIOR  WRITS,  207, 
how  money  should  be  applied,  208. 
preferred  labor  claims,  209. 

SERVING  PROCESS, 

responsibility  in,  86, 

summons  on  corporations,  7. 

summons  on  vessels,  8. 

summons  on  infant,  6. 

summons  on  minors,  6. 

order  of  arrest,  27. 

on  occupant  in  attachment,  78. 

on  third  party  in  attachment,  79. 

by  whom  summons  may  be  served,  5. 

delay  in,  18,  201. 

complaint  with  summons,  3. 

affidavit  of  service  of  summons,  5. 

warrant  of  arrest,  405. 

writ  of  assistance,  302. 


538  INDEX. 

SERVING  PROCESS, 

garnishment,  §§  120,  203. 

attachment  on  personal  property,  92. 

summoning-  sheriff's  jury,  134. 

in  preferred  labor  claims,  209. 

attachment  of  real  estate,  76. 

on  stocks,  6. 

by  posting  on  real  estate,  80. 

attachment  of  fixtures,  77. 

attachment  of  growing  crops,  168. 

attachment  of  vessels,  223. 

avoiding  service  of  summons,  i. 

bench  warrant,  431. 

in  change  of  venue,  364. 

claim  and  delivery,  38. 

what  constitutes  complete  attachment,  81. 

on  prisoners,  458. 

in  court-martial,  391. 

warrant  in  another  county,  410. 

sheriff's  notice  to  sureties,  398. 

garnishment  under  execution,  203. 

execution  on  real  and  personal  property,  11,  205,  210,  225. 

execution  on  homestead,  256. 

levy  on  real  property,  225. 

against  corporations,  247. 

levy  and  sale  of  franchise,  198. 

habeas  corpus,  55. 

injunction,  53. 

on  partnership  property,  26,  202.  _ 

on  mortgaged  personal  property  in  execution,  167, 

notice  to  sureties,  329,  398. 

plaintiff's  right  to  prompt  service,  i. 

of  subpoena,  436. 

SETTING  ASIDE  SHERIFF'S  SALE,  230. 

SHERIFF  AS  AGENT,   132. 

verdict  of  sheriff's  jury  no  protection,  133. 
summoning  sheriff's  jury,  134. 

SHERIFF'S  JURY, 

trial  by,  131,  133,  134,  191- 
indemnity  bond  and,  191. 
no  protection  in  verdict  of,  133. 
summoning  jury,  134. 

SHERIFF'S  NOTICE  TO  SURETIES,  329,  398. 

SHERIFF  LIABLE  FOR  ACTS  OF  DEPUTY,  353. 

SHERIFF  TO  PROVIDE  COURT-ROOMS,  385. 


INDEX.  539 

SHERIFF'S  DEEDS, 

against  whom  officer's  deed  is  evidence,  §  296. 

against  whom  officer's  deed  not  evidence,  298. 

deed  by  deputy  sheriff,  301. 

how  meaning  of  deed  ascertained,  297. 

parol  evidence  not  admissible,  294. 

recitals  in,  293. 

when  void,  299. 

when  due,  290. 

when  takes  effect,  291. 

what  conveys,  292. 

who  estopped  by  recitals  in,  294. 

when  mandamus  to  sheriff  will  not  lie,  300. 

SHERIFF'S  FEES, 

attorney  cannot  bind  client  for  certain  fees,  359. 

care  of  court-house,  361. 

complaint  in  action  for,  363. 

commissions  on  execution,  360 

fees  allowed  by  court,  359. 

fees  in  change  of  venue,  364. 

fees  for  copies,  366. 

illegal  fees,  368. 

in  habeas  corpus,  365. 

mileage  for  conveying  prisoners,  370. 

officer  may  have  execution  for  fees,  371. 

official  duty  of  sheriffs,  367. 

prepayment  of  fees,  362. 

separate  charges  for  separate  acts,  369. 

SHERIFF, 

office  of,  372. 

agreement  to  indemnify,  347. 

liability  of  on  unfinished  process,  374. 

liability  of  for  delay  in  making  arrest,  416. 

liability  of  sureties  of,  334. 

liability  of  sureties  of  on  indemnity  bond,  335, 

liability  of  for  illegal  levy,  336. 

to  provide  court-rooms,  385. 

cannot  sell  when  stay  is  ordered,  162. 

when  may  levy  on  real  instead  of  personal  property,  214, 

purchaser  at  sale,  234. 

recovery  from  bidder  at  sale,  243. 

setting  aside  sale  by,  230. 

service  of  injunction  on,  54. 

instructions  to  in  writing,  75. 

liability  of  sheriff  and  sureties  for  trespass,  343. 

liability  of  on  void  judgment,  66. 

liability  of  for  acts  of  deputy,  353. 


540  INDEX. 

SHERIFF, 

expenses  of  in  arrest  and  bail,  §  28. 

liable  for  escape  in  arrest  and  bail,  35. 

authority  of  in  levying,  91. 

authority  of  to  conduct  business  in  attachment,  iii. 

authority  of  deputy,  112. 

right  to  indemnity,  130. 

responsibility  of  in  serving  process,  86. 

liable  for  loss  by  negligence,  1 10. 

receipt  of  a  discharge,  127. 

as  agent,  132. 

summoning  sheriff's  jury,    134. 

directions  to  in  writing,  75. 

instructions  to,  74. 

affidavit  and  order  to  in  claim  and  delivery,  37. 

deed  by,  289. 

deed  by  deputy  of,  301. 

defect  in  bond  of,  330. 

defense  of  in  action  for  neglect,  333. 

delay  of  in  attachment,  87. 

delay  of  in  making  arrest,  416. 

dead  bodies  of  prisoners  to  physicians,  387. 

when  officer  may  hold  over,  375. 

notice  to  sureties,  329,  398. 

STALLIONS, 

not  exempt  from  execution,  159. 

STATUS  OF  REDEMPTIONER,  270. 

STAY  OF  EXECUTION,  185. 
sheriff"  cannot  sell  under,  162. 

STOCKS, 

attachment  of,  114. 
garnishment  of,  115. 

SUBPCENAS, 

in  civil  and  criminal  cases,  chapter  XVIII. 

issued  by  justice  of  the  peace,  432. 

issued  with  blank,  433. 

defined,  434,  446. 

how  issued,  435. 

how  served,  436,  447. 

witness  fees,  372,  436. 

concealed  witness,  437. 

when  witness  compelled  to  attend,  438. 

arrest  of  witness,  439. 

if  witness  be  a  prisoner,  440. 


INDEX.  541 

SUBPCENAS, 

witnesses  protected  from  arrest,  ^441. 

when  arrest  of  witness  is  void,  442. 

liability  of  officer  for  detention  of  witness,  443. 

discharge  of  witness  from  arrest,  444. 

witnesses  before  board  of  supervisors,  445. 

who  may  issue,  432,  446. 

by  whom  and  how  served,  436,  447. 

foreign  subpoenas,  448. 

expenses  of  witnesses,  449. 

and  witness  fees,  372. 

SUBSEQUENT  JUDGMENT  LIEN, 
in  redemption,  271. 

SUFFICIENCY  OF  SURETIES  IN  ATTACHMENT,  73. 

SUMMONING  SHERIFF'S  JURY,  134. 

SUMMONS, 

affidavit  of  service,  5. 

avoiding  service,  9. 

by  whom  may  be  served,  5. 

clerk's  certificate  on,  4. 

endorsement  of  receipt  by  officer,  2. 

erasures  in  return,  21. 

how  served  on  minors,  6. 

inexcusable  delay  in  service  of,  18. 

informal  yet  sufficient  service,  12. 

insufficient  evidence  of  service,  11. 

officer  should  ascertain  true  name  of  defendant,  10. 

plaintiff's  right  to  prompt  service,  i. 

receipt  of  summons,  2. 

return  prima  facie  evidence  of  fact  stated  therein,  13. 

return  of  deputy  not  made  in  name  of  sheriff,  15. 

return  when  not  served  by  officer,  16. 

re-delivery  of  original  after  filing,  17. 

service  on  corporations,  7. 

service  on  vessels,  8. 

service  on  infant  at  suit  of  father,  6. 

sheriff's  return  not  traversable,  17. 

sufficient  proof  of  service,  14. 

the  complaint,  3. 

when  should  be  returned,  19. 

effect  of  new  summons  on  attachment,  62. 

SUITS  AGAINST  SHERIFFS  AND  CONSTABLES, 

action  for  trespass,  344. 
actions  upon  undertakings,  358. 
agreement  to  indemnify  sheriff,  347. 


542 


INDEX. 


SUITS  AGAINST  SHERIFFS  AND  CONSTABLES, 

an  estoppel  that  protects  sheriff,  §  351. 

bond  to  indemnify  sheriff  for  unlawful  act,  345. 

conditions  of  indemnity  bond,  348. 

defect  in  sheriff's  bond,  330. 

demand  for  property  wrongfully  taken,  328. 

defense  in  action  for  neglect,  333. 

duress  of  goods,  340. 

estoppel  of  owner  of  attached  property,  341. 

judgment  against  sheriff,  350. 

justification  for  seizure,  339. 

limit  of  time  for  actions  against  officers,  326. 

liability  of  sheriff's  sureties,  334. 

liability  of  sureties  on  indemnity  bonds,  335. 

liability  for  illegal  levy,  336. 

liability  of  officers  and  sureties  for  trespass,  343. 

measure  of  damages,  356. 

offices  of  sheriff  and  tax  collector  separate,  357. 

officer  not  responsible  through  laches  of  another,  332. 

penalty  for  not  paying  over  moneys,  327. 

plaintiff  bound  by  his  bond,  349. 

receipt  to  sheriff  as  estoppel,  342. 

release  of  sheriff  by  stipulation,  355. 

remedy  against  sheriff,  331. 

sheriff  liai3le  for  acts  of  deputy,  353. 

simple  trespass,  352. 

sheriff's  notice  to  sureties,  329,  398. 

violation  of  duty  by  sheriff,  346. 

when  previous  demand  not  necessary,  337. 

when  demand  necessary,  338. 

when  judgment  cannot  be  set  off,  354. 

SUNDAY, 

writ  not  receivable  on,  86,  146. 
SUPPRESSION  OF  RIOTS,  373. 
SURPLUS  PROPERTY  OVER  SALE,  109. 

SURETIES, 

liability  of  in  arrest  and  bail,  31. 
exception  to  in  arrest  and  bail,  32. 
justification  of  in  arrest  and  bail,  33. 
in  claim  and  delivery,  43. 
suf-ficiency  of  in  attachment,  73. 
sheriff's  notice  to,  329,  398. 
liability  of  sheriff  s  sureties,  334. 
liability  of  sheriff  and  sureties,  343. 

SURRENDER  OF  DEFENDANT, 

in  arrest  and  h)ail,  30. 


INDEX. 


543 


TAKING  WEAPONS  FROM  PRISONERS,  §408. 
TAKING  PRISONER  BEFORE  MAGISTRATE,  411. 

TEAMSTER, 

exempt  property  in  execution,  149,  150,  152. 

TEMPORARY  EXEMPTIONS  FROM  ARREST,  25. 

TENANTS  IN  COMMON  IN  WRIT  OF  ASSISTANCE,  307. 

TENANTS  IN  COMMON  IN  REDEMPTION,  276. 

TERM  OF  OFFICE, 

expiration  of,  375. 

TITLE, 

of  purchaser  at  sale,  213,  235,  248,  249,  250. 

of  purchaser  of  leasehold  interest,  246. 

of  purchasers  generally,  248. 

not  dependent  on  sheriff's  return,  249. 

when  owner  is  estopped  from  asserting,  250. 

cloud  on,  252. 

cloud  on  homestead  title,  254. 

under  foreclosure  sale,  262. 

when  title  passes,  264. 

TIME  OF  REDEMPTION,  267. 

TIME, 

computing,  393. 

TORTS, 

arrest  for,  396. 

TRANSFERS, 

fraudulent,  129. 

TRESPASS, 

by  deputy,  395. 

joint  trespassers,  135, 

action  against  officer  for,  344. 

liability  of  officer  and  sureties  for,  343. 

simple  trespass,  352. 

TRIAL  BY  SHERIFF'S  JURY,  131. 

sheriff's  jury,  191. 

TRUST, 

deed  of,  163. 


544  INDEX. 

UNFINISHED  PROCESS,  §  374. 

UNITED   STATES  PRISONERS,  454. 

UNDERTAKING, 

in  claim  and  delivery,  37. 

attachment  void  for  want  of  proper,  65. 

removes  sheriff's  responsibility,  88. 

form  of,  89. 

property  released  by,  136. 

actions  upon,  358. 

VENUE, 

fees  in  change  of,  364. 

VERDICT  OF   SHERIFF'S  JURY,   133. 

VESSELS, 

attachment  of,  223. 
service  of  summons  on,  8. 
sale  of,  224. 
aid  to  wrecked,  388. 

VIOLATION  OF  DUTY  BY  OFFICER,  346. 

VOID  CONFISCATIONS,  386. 

VOID  SHERIFF'S  DEED,  299. 

VOID  PROCESS, 
order  of  arrest,  26. 
attachment,  61,  65. 
levy,  49. 

levy  on  insolvent's  property,  50. 

and  voidable  executions,  78,  79,  144,  145,  186,  187,  190. 
judgment  and  levy,  184. 
levy  on  homestead,  253. 
valid  and  void  sales,  188. 

VOID  JUDGMENT, 

liability  of  officer  on,  66. 
liability  of  party  enforcing,  67. 


WAGES, 

attachment  of,  153. 

of  wife  not  liable  for  husband's  debts,  200. 

WAREHOUSEMAN'S   LIEN, 
waiver  of,  102. 


INDEX.  545 

WARRANTS, 

search,  §  463. 

how  served,  463. 

who  may  serve,  463. 

power  of  officer  in  serving ,  463. 

when  may  be  served,  463. 

when  returnable,  463. 

arrest  without,  399. 

when  must  be  shown,  401. 

name  of  defendant  in,  409. 

how  executed  in  another  county,  410. 

when  arrest  may  be  at  night,  402. 

when  arrest  may  not  be  at  night,  403. 

night  time  defined,  404. 

when  doors  may  be  broken  in  arrest,  407. 

WEAPONS, 

taking  from  prisoners,  408. 

WHEN  ACT  FALLS  ON  HOLIDAY,  394. 

WHEN  SHERIFF'S  DEED  DUE,  290. 

WHEN  SHERIFF'S  DEED  TAKES  EFFECT,  291. 

WHAT  SHERIFF'S  DEED  CONVEYS,  292. 

WHEN  OFFICER  MAY  HOLD  OVER.  375. 

WHEN  SHERIFF  MAY    LEVY  ON    REALTY  INSTEAD 
OF  PERSONAL  PROPERTY,  214. 

WHO  MAY  REDEEM  AT  SHERIFF'S  SALE,  265. 

WHEN  JUDGMENT  DEBTOR  MAY  REDEEM,  272. 

WHEN  REDEMPTIONER  MAY  REDEEM,  272. 

WHO  CANNOT  REDEEM,  275. 

WHAT  MONEY  SHERIFF  MAY  RECEIVE  IN  REDEMP- 
TION, 286. 

WITHDRAWING     REDEMPTION     MONEY     DEFEATS 
REDEMPTION,  287. 

WIFE'S  PROPERTY   NOT   LIABLE    FOR    HUSBAND'S 
DEBTS,  200. 

WITNESSES, 

serving  subpoena  on,  372,  436,  447. 

fees  of,  372,  436. 

prisoners  brought  as,  from  other  counties,  424. 

35 


546 


INDEX. 


WITNESSES, 

before  board  of  supervisors,  ^445. 
protected  from  arrest,  441. 
arrest  of,  439. 
concealed  witnesses,  437. 

WRECKS, 

aid  to  vessels,  388. 

WRIT  OF  ASSISTANCE, 
object  of,  302. 
alias  writ,  309. 

against  whom  will  issue,  304. 
false  return,  310. 

plaintiff  entitled  to  immediate  service,  303. 
when  writ  will  be  refused,  305. 
when  writ  may  issue,  306. 
where  tenants  in  common,  307. 
who  may  not  be  removed,  308. 


INDEX   TO    FORMS. 


RETURNS. 

Summons  served  on  minors 

Summons  served  on  one  defendant 

Summons  served  on  several  defendants 

Summons  served  on  a  defendant  and  not  on  others 

Summons  served  on  local  corporation 

Summons  served  on  foreign  corporation — see  note  to 

Summons  served  on  defendant  of  unsound  mind 

Summons  served  out  of  Justice's  Court 

Summons  served  out  of  Justice's  Court,  with  county 

certificate 
Summons  when  defendant  not  found 
Summons  with  affidavit  of  service 
Order  of  arrest  on  summons     ... 
Subpoena  in  civil  case 
Subpoena  with  affidavit  of  service 
Subpoena  in  criminal  case 

Attachment  when  defendant  gives  undertaking 
Attachment  of  personal  property 
Attachment  of  real  property  standing  on  records  in 

person  other  than  defendant 
Attachment  of  real  property  standing  on  records  in 

defendant,  and  when  there  is  occupant 
Attachment  of  real  property  standing  on  records  in 

defendant,  and  when  there  is  no  occupant 
Garnishment  on  bank 

Garnishment  on  individual  who  made  no  statement 
Garnishment  on  individual  who  made  statement 
Execution  where  personal  property  has  been  sold    . 
Execution  where  real  estate  has  been  sold 


clerk' 


name 


name 


of 


of 


of 


No. 
I 
2 

3 
4 
5 
5 
6 

7 


9 

lO 

II 

12 

13 
14 
15 
i6 

17 


19 

20 
21 

22 

23 

24 


548 


INDEX  TO  FORMS. 


Foreclosure 

Replevin  when  property  is  delivered  to  plaintiff 

Replevin  when  property  is  re-delivered  to  defendant 

Writ  of  restitution,  served 

Writ  of  restitution,  not  served 

Writ  ot  assistance 

Certiorari 

Citation 

Search  warrant    ... 

Bench  warrant 

Injunction,  served  on  individual 

Injunction,  served  on  board  of  supervisors 

Jury  venire 

Habeas  corpus 

Death  warrant 


No, 

25 
26 

27 
28 
29 
30 
31 
32 
35 
36 
37 
38 
39 
73 
74 


OFFICE    FORMS. 

Order  for  levy  and  sale  of  personal  property 

Order  for  levy  and  sale  of  real  estate 

Notice  of  levy  on  real  estate  under  execution 

Notice  of  attachment  of  real  estate 

Order  for  attachment  of  personal  property    .. 

Order  for  attachment  of  real  estate 

Order  for  release  of  attachment 

Notice  of  attachment  (garnishment)  of  stocks 

General  notice  of  attachment  of  personal  property 

nishment 
Answer  to  garnishment 
Undertaking  to  prevent  attachment 
Undertaking  on  release  of  attachment 
Receipts  to  sheriff 
Indemnity  bond  in  attachment 
Indemnity  bond  in  execution    ... 
Notice  of  sale  of  personal  property     ... 
Notice  of  sale  of  real  estate  under  execution 
Notice  of  sale  of  real  estate  vmder  foreclosure 
Certificate  of  sale  of  stock 

Certificate  of  sale  of  real  estate  under  execution 
Certificate  of  sale  under  foreclosure 
Deed  under  execution     ... 


40 

41 
42 
43 
44 
45 
46 

47 

48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 

59 
60 
61 


INDEX  TO   FORMS. 


549 


Deed  under  foreclosure 

Monthly  statement  of  fees  to  auditor   ... 

Semi-yearly  statement  of  fees  to  auditor 

Monthly  statement  of  jailor  to  county  auditor 

Certificate  of  redemption  of  real  estate 

Grand  jury  subpoena 

Criminal  subpoena 

Grand  jury  summons 

Trial  jury  summons 

Special  jury  summons 

Sheriff's  inventory  and  keeper's  receipt 

Search  warrant     ... 

Inventory  on  search  warrant 


No. 

62 

63 
64 

65 
66 

67 
68 

69 
70 

71 

72 

33 

34 


APPENDIX    NOTE   TO    CHAPTER   III, 
ON  CLAIM  AND  DELIVERY. 


When  personal  property,  which  has  been  levied 
upon  by  the  sheriff,  has  been  taken  from  him  in 
replevin,  by  the  party  claiming  it,  he  should  consult 
his  own  safety  and  proceed  no  further  in  the  matter, 
but  rest  securely  on  the  bond  given  by  the  plaintiff 
in  the  replevin  suit.  He  may,  under  §  514,  C.  C.  P., 
give  an  undertaking  and  retake  the  property  ;  but  if 
he  pursue  this  course,  he  and  his  sureties  will  be 
liable  to  the  claimant  for  its  value.  Having  subse- 
quently sold  the  property  under  the  execution,  and 
paid  the  proceeds  to  the  plaintiff  in  execution,  he 
may  eventually  be  compelled  to  pay  its  value  to  the 
claimant. 


ERR  A  TA. 


Read  "praying"    for    "paying"    in   the  eighteenth   Hne  on 
page  298. 

Add  "a  copy  of  said  summons"  after  the  figures  "  18 — "  in 
Form  No.  4,  on  page  425. 

Insert  date  of  service  after  the  word  "defendant,"  in  Form 
No.  8,  on  page  427. 

Read  without  the  word  "  no"  in  the  sixth  line  on  page  291, 


p7 


-.1^ 


c 


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